Aurora Family Law CAN

Malik v Malik 2019 ONSC Application for restraining order. Series of escalating threats but wife was granted exclusive possession of the home and the husband had stopped contacting her after charges of assault so the restraining order was found to be unnecessary Ratio: Test for whether or not a restraining order is granted is whether the party “has reasonable grounds to fear for his or her own safety or for the safety of their child” Siwieck v Hiewka 2005 ABCA Applicant for an EPO wanted to get an EPO for matrimonial home to displace husband. Lied to courts but was granted a few EPO’s. Clarified that EPO’s are not granted as ex parte way of obtaining custody of children or possession of the home. Ratio: Two preconditions for EPO: (1) there must be family violence, and (2) the order must be needed for “immediate protection”. Marriage and Validity Marriage and Validity

have resulting in a paralysis of the will consistent with incapacity and 5. Applicant’s incapacity may be based on normal predictable reactions that need not be expressed in pathological terms. Essential elements of marriage: Outside prohibited degrees of consanguinity and affinity Marriage (Prohibited Degrees) Act s. 2(2) Can’t marry brother/sister, half brother/sister, or adopted siblings. Can marry aunt/uncle/niece/nephew. Essential elements of Marriage: No prior existing Marriage Meszaros v Meszaros 1969 ONHC Ms. Meszaros was married to someone prior but he abandoned her and he was declared dead 7 years later. Then married Mr. Meszaros who ejected her from the house and abused her. The question was whether she was validly married to Mr. Meszaros. Ratio: The presumption is where two people lived together and held themselves out as married are validly married. Can be rebutted with evidence of prior marriage. (Not the case here) Essential elements of marriage: Consent - Capacity to understand (Durham v Durham, Tanti v Tanti) - Duress (MA v BB) - Limited purpose, Fraud, mistake Durham v Durham 1885 Contract of marriage is simple and doesn’t require high degree of intelligence. As long as you can understand that you are to live together, love one another to the exclusion of all others you have capacity to understand Tanti v Tanti 2020 ONSC Old man married Sharon and his son didn’t like Sharon so tried to get his dad declared incapacitated. The person challenging validity has the burden of satisfying lack of capacity. Capacity to marry is lower than to execute a will or grant PoA. Ratio: Test for determining capacity is whether there is capacity to understand the nature of the contract and duties and responsibilities entailed. Parties must agree to live together and love one another to the exclusion of all others.

Civil Marriages Act s. 7(1) you can get a divorce in the province you were married if: (a) lived separate and apart (b) neither spouse lives in Canada at time of application (b) Spouses lived for 1 year in a state that doesn’t recognize the marriage (gay) (2) application must be made jointly with consent, or with an order saying the other spouse is incapable of giving consent. Molson v Molson 1998 ABQB Argument over jurisdiction. He said she didn’t live in AB for 1 year, but the courts preferred her evidence. She applied for divorce in Alberta first, then he applied in Quebec. First come first served. Ratio: The arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period of time makes that person ordinarily resident ( Macpherson v Macpherson ) Wang v Lin 2013 ONCA Wife and Kids had Canadian citizenship, but husband spent significant time in China and lost PR status. In 2010 wife moved to China for two years and then took kids back to Canada without husband’s consent and filed for divorce. No jurisdiction because intention alone cannot determine ordinary residence. Her real home in the year prior was China. Ratio: Intention alone cannot determine ordinary residence Al Sabki v Al Jajeh 2019 ONSC Parties grew up in Syria, moved around a lot, she lived in Canada, him in Singapore. He sought divorce in Syria because support obligations were lower. Presumption that a foreign divorce is valid. Courts recognize foreign divorce in following situations: 1. Where jurisdiction assumed on basis of domicile of spouses 2. Where foreign divorce is recognized by the law of the domiciled parties 3. Where foreign jurisdictional rule corresponds to Canadian jurisdictional rule 4. Where circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian Court had they occurred in Canada (habitually resident for one year) 5. Where either party has a real and substantial connection with foreign jurisdiction a. Real and substantial connection test requires a significant connection between the cause of action and foreign court Ratio: Enumerated list of when a foreign divorce is recognized. Courts rarely refuse to recognize a divorce on policy grounds. But the enforcing court must ensure the defendant was granted a fair process.

extent to which she cheated. There was no evidence of an intention to forgive. - Knowledge of the matrimonial offence - An intention to forgive, AND - The restoration into the marriage of the guilty spouse Bars to Divorce: Connivance (consenting or contributing to adultery) Berger v Berger 1974 BCSC Husband wanted wife to have sex with another man in his presence. Wife then left the husband for the other man. It was found he actively encouraged the intimacy of which he now complains. Ratio: you cannot complain about conduct of which you encouraged at the time. Bars to Divorce: Reasonable arrangements for children not made Savoia v Savoia 2009 ABQB Wife wanted to sever corollary relief from divorce judgment, but husband argued CS hadn’t been determined. She didn’t provide much evidence as to how much CS she was paying (he had custody) or how much the parties made. Determined you don’t need extensive evidence; a paragraph will suffice. Ratio: Need to demonstrate evidence as to CS before you can sever a divorce from corollary issues. Adult Interdependent Partners Adult Interdependent Partners AIRA s. 1(1)(f) Relationship of interdependence is who share each other’s lives, are emotionally committed to each other, and function as an economic and domestic unit. (2) to determine whether they function as economic and domestic unit consider (a) conjugal relationship (b) degree of exclusivity (c) conduct and habits with respect to household activities and living arrangements (d) degree to which they hold themselves out as a domestic/economic unit

Family Law Act (applies to married, formerly married, and AIPs) s. 17(1) a court can vary, rescind or suspend prospectively or retroactively a support order (4.1) before variation, the court must be satisfied that a change in condition, means, needs, or other circumstances has occurred (7) A variation order should consider the same considerations as under s. 15.2(6)(a-d) s. 56 Every spouse or AIP has an obligation to support s. 57(1) A court can make an order to provide support for the other spouse/AIP (2) can only make an order under this section if (a) in the case of spouses, (i) one or both have obtained declaration of irreconcilability (ii) spouses living separate and apart or (iii) although not separate and apart (A) spouses are experiencing discord they cant be expected to live together or (B) one spouse has neglected to provide the other with necessaries of life (b) in the case of AIPs (same as (a)(i-iii)) s. 58 (same as s. 15.2(4) of Divorce Act) s. 59 cannot take into account conduct unless (a) arbitrarily or unreasonably aggravates, prolongs or precipitates need for support s. 60 (same as s. 15.2(6)(a-d) of Divorce Act) Miron v Trudel 1995 SCC Considered the definition of spouse and whether this could include long- term unmarried spouses. Medora v Kohn 2003 ABQB See above Ratio: Once it is determined that a relationship of AIP existed, look to factors in FLA as to entitlement. Messier v Delage 1983 SCC They were married for 12 years and after 5 years of paying SS husband sought to end spousal support. SCC held she should still receive SS since she could not support herself. Maintenance should be awarded to a spouse who cannot provide for her own needs. Ratio: This probably isn’t good case law so I wouldn’t use it. Pelech Trilogy 1987 SCC In these cases, there were written agreements made and then applications Ratio: These separation agreements

become self-sufficient, and third that she would find a new partner. Also departed from SSAGs. She was not disadvantaged by the marriage but by it’s breakdown. from the SSAG’s must give reasons why. Economic disadvantage can be as a result of the breakdown of the marriage not necessarily the marriage itself. Anand v Anand 2016 ABCA He was very rich. She ended up having to go back to India to deal with her leave of absence and while there he cancelled her return ticket and filed for divorce, exclusive possession, and sole custody. She ended up getting a very large order for spousal support because he made so much money. Because it was only an interim order, it was found to be reasonable. Ratio: Must consider need relative to the station in life of the parties before the collapse of the marriage. H (JL) v W (RS) 2017 ABCA He made money high income earner, she was trained as a lawyer but stayed home with kids. Both lived beyond their means. TJ looked poorly on that fact and the fact that she stayed in the MH when she could have sold it. Ratio: You can’t increase your needs by squandering assets, but neither can the payor reduce means to pay by irresponsibly spending. AKA grow up. Picket v Walsh 2016 ABQB Both parties and their spouses are all disabled and unable to work. This case deals with the effect of re-partnering. Ratio: Re-partnering does not mean compensatory support comes to an end, but it may bring non- compensatory support to an end. Rockall v Rockall 2010 ABCA She had AIDS and husband had a decent income. The TJ ordered a lump sum payment without providing reasons. Issue was lump sum payment (because of tax consequences). Lump sum payment is the exception not the rule. Ratio: Lump sum support is appropriate where the payor fritters away capital; where the recipient needs it to retrain/university; or where there is ill will between the parties that a clean break is necessary Rocky v Hartwell 2016 AWLD Parties were not married, did not comingle finances. She became educated throughout the relationship but claimed both compensatory and non- compensatory support. Courts did not award any support despite finding them AIPs. Ratio: The ability of one party to pay alone does not form the basis for entitlement to support Parentage Parentage Family Law Act s. 7(2) The following are parents of a child: (a) birth mother and bio dad

an embryo and separate , they retain donor couple status. Where one party donates genetic material and uses third party and then they separate, genetic donor loses donor couple status and becomes single donor. Where neither party donates genetic material and separate, they still retain donor couple status. H (DW) v R (DJ) 2013 ABCA Mr. H and R had Ms. D give birth to a child for them. When H and R separated, R and D made an agreement that they would be parents of the child. H wanted to be declared legal parent and guardian. Can use parens patriae jurisdiction where there is a legislative gap – here the gap was for same sex marriages. Ratio: Parens Patriae jurisdiction is limited to the welfare is at risk of the child and to benefit the child (not others) – must produce some benefit to the child Parenting Issues Divorce Act s. 16 (1) the court shall take into consideration only the BIC in making parenting orders (3) Factors to consider include (a) child’s needs given age and development such as need for stability (b) nature and strength of relationship with spouse, siblings, grandparents, and anyone that plays an important role (c) the willingness to support the development and maintenance of the relationship with the other spouse (d) the history of care of the child (e) child’s views and preferences giving weight to age and maturity (f) cultural linguistic religious and spiritual upbringing (g) plans for child’s care (h) ability and willingness to meet the needs of child (i) ability and willingness to cooperate with one another (j) family violence (k) civil or criminal proceeding, order, condition, or measure relevant (4) in considering family violence the court must consider (a) nature, seriousness and frequency (b) pattern of coercive and controlling behavior (c) whether directed towards child or whether directly or

Family Law Act indirectly exposed (d) physical, emotional, and psychological harm or risk of harm (e) any compromise to the safety of the child or other family member (f) whether causes the child to fear for his or another person’s safety (g) steps taken to prevent violence (h) any other relevant factor (5) courts cannot take past conduct into consideration unless relevant s. 16.1(1) A court can make an order providing for parenting time or decision-making responsibility on application by (a) either or both spouses; or (b) a person, other than a spouse, stands in place of a parent s. 16.2(1) Parenting time is allocated by way of schedule (2) unless ordered otherwise, the parent who has time has authority to make day-to-day decisions s. 16.3 Decision making responsibility can be allocated to both spouses s. 16.4 A parent who gets parenting time is entitled to information about the child’s well-being including health and education s. 18(1) BIC s. 18(2) factors to consider same as s. 16(3) factors of DA s. 21 deals with parenting and guardianship similar to s. 16.1-16.4 of DA s. 21(5) guardians must nurture the child, ensure child has necessaries of life. s. 21(6) Guardians make decisions about day-to-day activities, residence, education, who they live with, whether the child should work, medical/dental treatment, etc. s. 25(1) There must be another guardian in place and the guardian must consent to termination (2) If the child is 12+ they must consent s. 32 gives courts ability to make decisions as to who can care for the child when multiple guardians can’t agree.

s. 35(1) Court can make an order providing contact between a person who is not guardian (2) Only people that can make application without court permission are parents, guardian, or person standing in place (3) Grandparents don’t need permission if parents are guardians and they live separate and apart or one has died and access is interrupted (4) & (5) BIC Parenting Orders and Decision Making Divorce Act Family Law Act s. 16.1(1) A court can make a parenting order for custody for a child of the marriage s. 2(1) Child of the marriage is a child of two spouses or former spouses who at the material time is (a) under the age of majority and has not withdrawn from their charge; or (b) over the age of majority and still under their care but unable to withdraw due to illness, disability or other cause s. 1(c) Child is defined as a person under 18 s. 19(1) Every child is subject to guardianship unless they are an AIP or a spouse Wakaluk v Wakaluk 1976 SKCA Evidence all about how bad the other spouse was. Need evidence about the children and what is in their best interest. Ratio: Focus must be on the child. Need evidence AMD v KG 2020 ABQB Synopsis of status quo principles: 1. BIC is overarching factor 2. Status quo parenting is factor in gauging BI interim parenting 3. Includes pre- and post-separation status quo 4. Pre-separation status quo more significant 5. Agreement after separation is not a waiver of right to request further parenting time 6. Factors which diminish significance of post-separation status quo: where it is short lived, resulted from unilateral decision, or was affected by parent’s inability to parent 7. The longer the post-separation status quo the more significant 8. A parent may explain why delay in applying for parenting order Ratio: Status quo principles

and 9. Status quo may be difficult to determine in chambers and diminishes importance of status quo Nissen v Nissen 2019 ABQB Wife had children since separation and he saw on weekends and Wednesdays. He wanted joint custody she argued status quo. No presumption in favor of equal parenting or status quo. Change being difficult for children is not enough in the face of the maximum contact principle. Ratio: There are no presumptions in parenting disputes; the only standard is BIC M (A) v M (J) 2016 ONCA Dad got custody through an ex parte order which was obtained on incomplete disclosure. Based on this unlawful status quo, custody was given to mom. The longer the status quo is in place the more reluctant the judge is to disturb it. Ratio: Unlawful status quo will mean that the arrangements will be reversed Jonzon v Yull 2020 ABCA Stays pending appeal: Can apply for a stay if they appeal a trial/interim decision to protect the status quo and promote stability for the children. Ratio: Three part test: - High enough likelihood of success on appeal to suggest it is not frivolous or vexatious - Child will suffer irreparable harm if not granted - The harm a child will face if the stay isn’t granted exceeds the harm they will suffer if it is granted Isakhani v Al-Saggaf 2007 ONCA Mom left Dad in Dubai due to DV. Had considerable evidence proving the assaults. Dad claimed she abducted the child. BoP that dad was violent and exposed child to this. Ratio: Where there is family violence child will be protected from abuser S (J) v S (M) 2014 ABPC Mom seeking sole custody and termination of guardianship and access to father. He was a sex offender and could not properly care for children. Court agreed. Ratio: sexual violence is a form of family violence and may result in termination of parental rights (rare) Dix v Thomas 2006 ONSC Mom moved from Kingston to Ottawa. Question where child would go to school. Both parents had strengths and weaknesses, but Dad’s new partner tipped balance in his favour. What is to be considered is the environment the parent can offer in a broad context. Mom’s mom wouldn’t accommodate the father. Ratio: Need to consider the entire household including new partners S (J) v W (R) 2008 ABQB Mom and dad married separated with child was 1. Mom dies at age 5 and Ratio: Both parties must repair the

dad takes child back to Newfoundland. Aunts wanting contact. The courts cannot take custody from the lawful guardian of the child and give it to a legal stranger unless the guardian has abandoned or neglected the child. For a contact order consider: (1) is it in the BIC? (2) will their physical, psychological, emotional health be jeopardized if denied? (3) Is guardian’s denial reasonable? fractured family relations to ensure the child thrives growing up. Contact orders D (J) v P (C) 2009 ABQB Parents had joint custody, but dad basically left his time with kids to his parents. Grandparents wanting guardianship of children. Mom wasn’t the best but kids needed her. Mom would ensure grandparents are in the children’s lives. Can’t be said about the grandparents. Ratio: Only test to be applied is BIC. Mother is guardian not grandparents. Van de Perre v Edwards 2001 SCC Woman got pregnant with NBA star’s child. SCC said that race relations are informative but not determinative of custody and access, especially where the child shares both parent’s culture. Culture is a factor under the BIC test in FLA s. 18.2(b)(iii). Ratio: Culture is a factor but is not determinative in determining BIC of the child B (S) v F (J) 2008 ABQB SB (father) and MFB (mom’s husband) wanted guardianship of Child. Mom only wanted MFB to have guardianship. s. 24 of FLA – must consider BIC when dispensing with consent. Because mom and the dad couldn’t get along they wouldn’t dispense with mom’s consent. Ratio: When dispensing with consent must consider if it is in the BIC. Parental discord would mean consent can’t be dispensed. Terwin v Krisco 2008 ABPC High conflict situation in which mom prevented dad from accessing the child and the courts found her controlling and manipulative. Decided on the maximum contact principle because there was nothing inherently wrong with Dad and he deserved to be in the child’s life. Joint custody ordered. Ratio: Where a parent has demonstrated an ability and a willingness to be a guardian and it is in the BIC joint custody can be ordered. Stefureak v Chambers 2004 ONSC Dad got child 3/4 weekends and July’s but in reality only saw him every other weekend. Mom sought to vary the order to reflect reality, and said the Child preferred to return home on Sunday. Court outlined 4 ways to ascertain the views of the child: 1. Through evidence of a trained professional like child psychologist/social worker 2. Through evidence of the parties and their lay witnesses who testify about out-of-court statements a. Must establish necessity and reliability. Necessity exists where it’s inappropriate to call child. Reliability where the statement is made to more than one person Ratio: Outlines 4 ways to ascertain the views of the child. Children have a voice not a choice.

3. By the judge interviewing the child in chambers 4. By permitting the child to testify Cannot delegate to the child disposition of their fate. May also get views of the child report. Parenting Time Divorce Act Family Law Act s. 16.1(1) A court can order parenting time s. 16.2(1) Parenting time is allocated using a schedule (2) The person who parenting time is allocated has authority to make, during that time, day-to-day decisions affecting the child s. 16.4 A person who gets parenting time is entitled to request information about the child’s well-being, education and health from anyone with that information s. 16.5 (1) A court can make an order providing for contact between a person other than a spouse (3) A person can make an application under (1) or (2) only with leave of the court (4) In making an order, the court must consider relevant factors including whether contact could otherwise occur, for instance during parenting time of another person. (5) Contents – proved for contact in the form of visits or any other means of communication s. 35(1) court can make an order providing for contact with anyone other than a parent (2) Only parent, guardian, or person standing in place of a parent can make application, others need permission from court. (3) Grandparents don’t need permission if parents are guardians and live separate and apart or one has died and access interrupted. (4) Consider BIC (5) When making an order must consider BIC. Whether physical, psychological or emotional heal is jeopardized if contact denied AND whether contact denied is unreasonable. (6) can order oral or written or any other method of communication and may proved for any other matter the court considers appropriate.

s. 36 can impose terms and conditions s. 40 If a person who has been granted contact has been denied time, courts can order: enforcement time, security, reimbursement for necessary expenses incurred, penalty of no more than $100/day, Imprisonment until time is given (max 90 days), enforcement of time with help of an officer. s. 41 If access person doesn’t use their time, custodial parent can be reimbursed for expenses incurred Young v Young 1993 SCC Mom had custody, dad access. Dad was JW and his relationship with kids was breaking down due to his religion. Instructed not to discuss religion around children. Where the relationship to the non-custodial parent conflicts with the BIC, the furtherance and protection of the BIC must take priority over the parent’s interests. It is in the interests of the child to remove sources of ongoing conflict which threaten to damage or prevent meaningful relationship. It is not the wishes of the custodial parent that govern but the BIC. Ratio: The only test in determining access and restrictions on access is BIC. What is best for one child may not be for both. C (JL) v L (JL) 2016 ABPC Granddaughter told Grandma mom’s bf abused her but unsubstantiated, now mom won’t allow grandma access. Granddaughter has strong relationship with Grandma and wishes to have a sleepover and to visit Grandma. Order for contact. Child had counsel that focused on BIC. Must consider whether denying contact may jeopardize child’s emotional, psychological, or emotional health and whether refusal is unreasonable. Ratio: Grandparents have no presumptive right to access and must discharge the onus of proving they should continue to have a relationship with the child Hardie v Payne 2010 ABQB Sister asking for contact with brother, but dad opposed. She had little contact in the last 7 years. Parents have the right and responsibility to make decisions in the BIC; it is only if parents can’t act in the BIC that courts will replace their decision. The existence of a relationship – even biological – is not sufficient to establish the kind of relationship required for granting leave. Ratio: There must be a significant relationship to grant a person leave to apply for access. Brazeau v Lejambe 2020 ONSC Joint custody. Mom took kids to Mexico and when they returned refused access because “kids were scared of covid” and she “couldn’t drag them to dad’s house”. Final orders are presumptively correct, they are not suggestions – must be obeyed. Ratio: Parents are required to do everything they reasonably can and have a positive obligation to ensure compliance with an order. Bors v Beleuta 2019 ONSC Extreme case of alienation. Mom was being uncooperative and had no insight into how she was injuring the children. Custody reversed in favor of dad. Parental alienation “is a descriptive term that refers to a process Ratio: Enumerated list of alienating behaviour.

where there is systematic devaluation, minimization, discreditation of the role of the other parent. One parent systematically, through physical, emotional, verbal, contextual, relational set of maneuvers reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing their role.” Problematic behaviours: - Allowing children to make decisions about contact - Refusing to speak to or be in close proximity to parent - Showing no concern for missed visits - Making statements and denial of what was said - Lack of interest, disdain, disapproval communicated through body language - Discouraging father from attending school events - Inauthenticity when testifying about importance of relationship between kids and parents - Portrayal of other parent as dangerous with inconsistent displays of fearfulness in front of children - Exaggeration of negative attributions of other parent – omitting positives - Projection of own thoughts, feelings and behaviours - Failure to correct child’s rude, defiant or omnipotent behaviour directed to other parent - Convinced of harm when there is no evidence of same - False or fabricated allegations of sexual, physical, and emotional abuse - Denigration and exaggeration of flaws of other parent - Extreme lack of courtesy to other parent Variation and Mobility Divorce Act s. 16.9(1) A person with parenting time and intends to relocate shall notify the other person (2) & (3) 60 days before the move, address, and proposal for new arrangements except where there is DV (4) Person can move as of date of notice if court authorizes or no objection within 30 days AND no order prohibiting relocation s. 16.92(1) Expanded BIC: reasons for relocation; impact on child; amount

of time the other person spends with the child; compliance with notice requirements; reasonableness of the plan (2) Can’t consider whether the person who intends to relocate would do so anyway without the child s. 16.93(1) If equal time with both parties, person moving has burden of proof that relocation is in BIC. (2) If child spends majority of time with relocating parent, non- relocating parent has burden of proof that relocation is not in BIC (3) all other cases, the parties have burden of proof that relocation is in BIC s. 17(1) Court can make an order to vary retroactively or prospectively (5) The court must be satisfied there has been a change in circumstances of the child since the making of the order Gordon v Goertz 1996 SCC Mom wanted to move with child to Australia. Parent seeking the variation must demonstrate a material change in circumstances of the child since the order. The threshold is met if there has been: 1. A change in the condition, means, needs, or circumstances of the child; 2. Which materially affects the child; and 3. Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. Ratio: Test for variation of an order Child Support Child Support Divorce Act s. 2(1) Child of the marriage means a child of two spouses who (a) is under 18 and hasn’t withdrawn from charge or (b) is over 18 and under their charge but has been unable by reason of illness, disability or other cause to withdraw from their charge or obtain the necessaries of life (2) For the purposes of the definition of child of the marriage in subsection (1) a child includes (a) any child for whom they both stand in place of parents; and (b) any child of whom one is the parent and the other stands in place of a parent

s. 15.1(1) a court can make an order requiring child support (2) the court can make an interim order for child support (3) The court must make an order in accordance with the applicable guidelines (4) Court can make an order under (1) or (2) for a definite or indefinite time and may impose terms, conditions or restrictions as it thinks just and fit. (5) A court can make an award different than in accordance with guidelines if it is satisfied that (a) special provisions respecting the financial obligations of the spouses or division or transfer of property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of that child; and (b) that the application of the guidelines would result in an amount that is inequitable (6) the court must give their reasons for doing sub (5) (7) Can make an award for amount outside of guidelines if consent is given and it is satisfied reasonable arrangements have been made. (8) To determine if reasonable, court will look to guidelines. But mere departure from guidelines is not satisfactory to make them unreasonable. s. 15.3(1) Where CS vs SS, CS takes priority s. 17(1) A court can vary, rescind, or suspend, proactively or retroactively (a) a support order by either or both spouses; or (b) a custody order by either or both spouses (2) A person other than a spouse cannot make an application under s. (1)(b) without leave of the court (4) There must be a change in circumstance to vary an order (6.1) a court must make a variation order in accordance with guidelines s. 46 defines child similar to s. 2(1) s. 47 defines parent to include standing in place of a parent

Family Law Act s. 48(1) a person is standing in the place of a parent if (a) is the spouse of the parent of the child or in a relationship of interdependence of some permanence with a parent of the child and (b) demonstrated a settled intention to treat the child as their own (2) Settled intention court may consider: age, duration of relationship, child’s perception of the person as parent, extent of involvement with discipline, education and extracurriculars, continuing contact post-separation, whether considered guardianship, adoption or name change, whether financial support provided, nature of relationship with parent, any other factors. s. 49(1) Every parent must pay CS unless child is an AIP or withdrawn from charge. s. 50(1) Court can make an order for CS on application by child, parent, person in control of child, anyone else with permission (2) Court can make child support order only if parents live apart, are experiencing discord, or child isn’t in care and control. s. 51(1) (2) & (3) same as 15.1(3)(5)(6) & (7). Re: following guidelines *Child can apply for support under FLA Chartier v Chartier 1999 SCC Wife had a child prior to marriage but husband raised child as his own and changed the last name. Cannot unilaterally give up status as parent to escape obligation to provide CS. When people act as parents towards a child, the child can count on that relationship continuing. The objective of the DA is to ensure the divorce affects children as little as possible. Once a child is a child of the marriage, obligations are the same as a biological parent. Ratio: Test for standing in place of a parent: - Intention - Child’s perspective - Step-parent’s perspective - Whether child participates in extended family unit - Whether person provides financially - Whether disciplines child - Whether represents to the world s/he is responsible - Nature/existence of relationship between child and absent parent

H (KA) v H (RS) 2001 ABPC Three kids, one was not his. The child withdrew from the relationship with him and was forming relationships with her biological father and new step- father. Where a child herself changes the nature of the relationship, then the payor no longer must continue to be financially responsible for her especially when the child has relationships with other individuals who have the obligation and capacity to support her. Ratio: Where the child changes the nature of the relationship, the payor is no longer obligated Achkewich v Achkewich 1998 ABQB Issue is entitlement to support for post secondary education. Presumption of support for first degree. Support may be denied where part time studies; child has resources; questionable intention to return to school; second degree. Factors to consider for support: - Age - Ability - Past performance in courses - Determination to assist with costs through summer employment - Means of paying spouse and obligation to provide for other children - Plans of the parents with regard to education of children especially when formulated during cohabitation - Appropriateness of course selection to generate employment - Conduct of the parties and the condition, means and circumstances of each Ratio: Enumerated list of factors to consider for support, as well as instances when support may be denied. Wahl v Wahl 2000 ABQB Daughter wanted to go to Arts school but had written a nasty letter to her dad. Same factors as Achkewich considered. Three criteria to meet if a child attending post-secondary is to be considered a child of the marriage: Child must have an aptitude that is reasonably likely for success, must pursue school with diligence, and there must be a reasonable likelihood it will lead to gainful and self-supporting employment. Ratio: Criteria to consider if a child attending post-secondary is a child of the marriage B (L) v V (PA) 2009 ABQB No agreement as to how they will use the trust fund for the children’s education. The son in school was very bright and wanted to go to med school. Departure from guideline amounts since the child was not living at home. An adult child should be required to make a reasonable and meaningful contribution towards expenses. Ratio: A child is obliged to contribute to their own expenses reasonably and meaningfully. Child Support Guidelines

Child Support Guidelines s. 1 The objectives are (a) to establish fair standard of support that ensures they benefit from financial means of parents (b) reduce conflict and tension between parents making calculation objective (c) improve efficiency of legal process (d) ensure consistency s. 3(1) Unless otherwise provided, the amount of child support for children under 18 is (a) the amount set out in the table and (b) the amount, if any, determined in s. 7 s. 4 Where income over $150,000 the amount of child support is (a) amount determined under section 3 or (b) if the court considers that amount inappropriate (i) in respect of first $150,000 the amount in the table (ii) in respect of the balance, the amount the court considers appropriate having regard to condition means, needs, and other circumstances and the financial ability of each parent. s. 7(1) A court may provide for all or any portion of the following expenses taking into account the reasonableness and the spending pattern before separation: (a) childcare incurred due to employment, illness, disability, or education (b) medical and dental insurance premiums (c) health related expenses like orthodontist, counseling, etc. (d) extraordinary expenses for primary or secondary school (e) expenses for post secondary (f) extraordinary expenses for extracurriculars (1.1) extraordinary expenses means (a) expenses that exceed what the parent can reasonably cover, or (b) expenses the court considers extraordinary taking into account (i) amount relative to income of the parent (ii) nature and number of educational and extracurricular activities

(iii) special needs and talents of the child (iv) overall cost of programs and activities and (v) any other similar factor relevant (2) Amount to be shared in proportion to their respective incomes, after deducting any contribution from the child (3) need to take into account subsidies, benefits, and income tax deductions and credits relating to the expense (4) but not the universal child care benefit s. 8 Where each spouse has custody of at least one child, the amount of CS is the difference between two table amounts. s. 9 where a spouse has custody/access not less than 40%, the amount of CS is determined based on (a) amount set out in the tables (b) increased cost of shared custody (c) condition, means, needs, and other circumstances s. 10(1) Child support can be different than s. 3 if it would cause undue hardship (2) circumstances that cause undue hardship include: (a) spouse has unusually high debts incurred to support spouses and children prior to separation (b) Unusually high expenses in relation to exercising access to the child (c) spouse has a legal duty to support any person (d) spouse has a legal duty to support another child (e) spouse has a legal duty to support a person who is unable to obtain the necessaries of life due to illness or disability. (3) undue hardship will be denied if the spouse would still have a higher standard of living than the other s. 15 outlines how to calculate income (line 1500 on T4) s. 19(1) Court can impute income where a spouse is (a) intentionally unemployed or underemployed (b) exempt from paying tax (c) lives in a country with a lower tax rate (d) diverts income that affects amount of CS

(e) is not reasonably using property to generate income (f) failed to provide information when under a legal obligation to do so (g) unreasonable expense deductions from income (h) receives significant income from dividends, capital gains, and other sources taxed at a lower rate (i) is a beneficiary under a trust s. 21 outlines what disclosure of income means Hanmore v Hanmore 2000 ABCA Two kids, dad had a new family and his income was not much. TJ failed to consider the contextual factors like he owned his own home while mom rented and awarded less than the table amount based on undue hardship. Two part test for undue hardship: (1) prove specific facts establishing undue hardship (s. 10(2)), (2) show the household will enjoy a lower standard of living than the household of the other parent should CS not be reduced. Burden of establishing undue hardship is difficult. Must be exceptional, excessive, or disproportionate . Ratio: Test for undue hardship Cunningham v Seveny 2017 ABCA Mr. was self employed and didn’t provide any evidence as to whether his expenses were reasonable. Mrs. sought an order varying CS because he wasn’t disclosing his full income. Parents have a duty to disclose. It is part of the obligation to pay child support. Onus is on the self-employed parent. Expense deductions can legitimately be made for tax purposes but calculating income for child support purposes is an entirely different matter. Child support is the right of the child. Ratio: Where a parent is self- employed, they have a duty to disclose and they have the onus of proving their expenses are reasonable. Bak v Dobell 2007 ONCA Granddad gave money to his son and wife wanted the court to impute that income to the son and get CS. But it is the responsibility of the father to pay CS not the grandfather. The courts may impute income for a reason not enumerated but lifestyle is not an income. Lifestyle is only relevant where a reasonable inference can be drawn that the payor must have a higher income. A payor is not expected to sell assets to pay CS. When determining if gifts are income consider: - Regularity of gift - Duration of receipt - Whether part of family’s income during cohabitation - Circumstances that earmark them as exceptional Ratio: Whether gifts can be imputed as income and under what circumstances

- Whether they do more than provide a basic standard of living - Income generated by gifts in proportion to payor’s entire income - Whether they are paid to support an adult child through crisis or disability - Whether likely to continue - True purpose and nature of gifts A (AE) v E (H) 2016 ABPC Dad was a drug dealer. He claimed child support did not match his lifestyle. This was the first case where gifts were imputed as income. Ratio: Lifestyle is relevant where a reasonable inference can be drawn that the payor has a greater income than disclosed. Keating v Keating 2017 ABCA TJ imputed income to dad saying he was underemployed. s. 19 should be interpreted to require proof of a specific intention to undermine or avoid support obligations but a finding of bad faith is not required. Ratio: When you want to impute an income must show: - The person engaged in a deliberate course of conduct to evade CS - Proof of intention to undermine or avoid obligations Child Support Issues R v R 2002 ONCA Married 8 years. His income rose dramatically in the last two years of the relationship and doubled after separation ($4.1M). Table CS was $65k/month. Mom prepared budgets which assisted the courts. While the table amount is inappropriate, the TJ made two errors: (1) based amount on lifestyle and pattern of living during marriage and failed to take into account post-separation income, and (2) failed to consider whether mom’s budget was reasonable. Ratio: While how families spent money before separation is a relevant consideration, post-separation increases are relevant and children are entitled to benefit from that. KLH v SH 2018 ABQB He had a fluctuating income as a real estate broker and didn’t want to pay the table amount. Not successful. The test for reasonableness of expenses will be a demonstration by the paying parent that the budgeted expenses are so high as to exceed the generous ambit within which reasonable disagreement is possible. Ratio: Test for reasonableness of expenses. Onus on paying parent. Recipient parent should prepare a budget. Leonelli-Contino v Contino 2005 SCC Joint custody therefore table amounts are not presumed. (s. 9) No presumption that 40% threshold reduces CS. No presumption of a set off. Courts must ameliorate discrepancies in the standard of living. Ratio: Considerations of s. 9 variations/orders for 40% child support

1. s. 9(a) calculate set off 2. s. 9(b) review budgets and actual spending. Requires consideration of overall increased costs for both parents 3. s. 9(c) consider ability of each parent to bear increased cost and standard of living in each house - respective incomes - disparity in incomes - assets and liabilities -child’s standard of living 4. consider whether it’s a variation or initial order – variation must be careful not to make one parent fall off a cliff. DBS v SR 2006 SCC Support recipients have an obligation to pursue support increases. Payors have a duty to increase CS when income increases. Must be brought while child is still a child of the marriage? (not anymore) Ratio: Unless there is blameworthy conduct, orders can go as far back as the date of effective notice (when discussed) up to three years before formal notice (motion filed) of the application given Michel v Graydon 2020 SCC Dad understated income and mom and daughter lived in poverty for years. After daughter was an adult brought a motion for retroactive child support. Failure to properly disclose income is conduct that privileges the payor and should not be positively rewarded. Ratio: May be able to bring application for retroactive CS where there is blameworthy conduct even while child is an adult Colucci v Colucci 2021 SCC Father didn’t pay child support and ended up in arrears of $140,000. Seeking variation retroactively. For retroactive variation: - Must meet material change in circumstances threshold (change in income) - Presumption arises in favour of retroactive adjustment to the date of notice, up to three years before notice of the application (for decreases, effective notice means clear communication and disclosure) - Where no effective notice, retroactive to date of formal notice - Can depart from presumptive rule considering: reason for delay, payor’s conduct, child’s circumstance, hardship to payor - Quantify Ratio: How to deal with retroactive variation