The ONCA released 98 decisions in June. Five of them involved family and child protection law. Four of these appeals were dismissed while one was partly allowed. Bortnikov is a good reminder to ask that the endorsement arising from a case conference reflect, at minimum, a request for costs of the attendance if you hope to later claim those costs against the other party. CAS v. A.C. hints at what may be some very interesting constitutional arguments in the child protection context. Farnsworth v. Chang provides some guidance on how to deal with income generated from excluded properties. Pellew is yet another example of an unsuccessful bias appeal, while Hersey deals with the sufficiency of a motion judge’s reasons.
CAS of Ottawa v. A.C., 2016 ONCA 512
Rouleau, Van Rensburg and Benotto JJ.A.
It is difficult to get a full picture of what exactly was going on in this case from the ONCA’s brief 9-paragraph endorsement. It appears that the moving parties sought a review, before a panel of three ONCA judges, of the order of Simmons J.A. who had found that none of the matters in the moving parties’ leave to appeal motions were properly before the ONCA.The three-judge panel held that Simmons J.A. had made no error.
The moving parties raised other arguments – including that their matter had to be heard in a court of equity which would apply Aboriginal law, not common law or statute, and that theChildren’s Aid Society and the province of Ontario had no authority to apprehend children of Aboriginal or Métis origin. Though the constitutional issue was not properly before the court and does not appear to have been fully argued, the ONCA in obiter agreed with Simmons J.A. that Delgamuukw does not stand for such a proposition.
Link to the endorsement here.
Bortnikov v. Rakitova, 2016 ONCA 427
Hoy, A.C.J.O Blair and Roberts JJ.A.
The appellant husband argued that:
(1) The trial judge erred in his valuation of certain property;
(2) The trial judge erred in allowing the respondent wife to deduct certain notional costs of disposition from the valuation of the property;
(3) The trial judge erred in calculating spousal support in that he relied on net income figures for the wife and not gross income figures;
(4) The trial judge erred in reducing the lump sum spousal support figure to make it tax neutral’
The ONCA dismissed the appellant’s first argument, noting that the trial judge had properly considered the expert evidence, but agreed that the trial judge had erred in allowing the wife to deduct notional costs of disposition from the value of the property. The ONCA cited the Sengmueller test and noted that there was insufficient evidence at trial on which to conclude that the property would likely be sold. Therefore, the trial judge had erred in permitting the wife to deduct notional costs of disposition. [As a result, the equalization payment owing to the appellant husband increased by $40,000.]
The trial judge had made a lump sum spousal support award of $35,000 in favour of the appellant husband. The ONCA upheld this award, noting that there was no evidence that the trial judge had erred in determining the wife’s income for support purposes, and reducing the lump sum award to make it tax neutral was entirely proper.
The respondent wife cross-appealed, arguing that the trial judge erred in awarding any spousal support at all. This argument was summarily dismissed by the ONCA.
The wife also cross-appealed the costs award made at trial in favour of the husband. While the ONCA agreed with the wife that the trial judge had erred in including in his costs award costs for an earlier case conference where the endorsement from that conference was silent as to costs (citing a 2007 decision of the ONCA in Islam v. Rahman), the ONCA declined to reduce the award, noting that it was reasonable and proportionate.
No costs of the appeal were ordered, as the ONCA deemed success to be divided.
Link to the reasons here.
Farnsworth v. Chang, 2016 ONCA 442
Rouleau, Pardu and Benotto JJ.A.
The husband argued:
(1) The trial judge erred in concluding that a property was not a matrimonial home
(2) The trial judge erred in denying him a deduction for a contingent tax liability;
(3) The trial judge erred in awarding the wife support and then, having awarded support, in failing to exclude the equalized portion of his pension from his income, and in failing to account for $30,000 paid in voluntary support.
With respect to (1), the ONCA noted that it was open to the trial judge to accept the wife’s evidence that the property was not ordinarily occupied as the family residence at the time of the parties’ separation.
With respect to (2), the ONCA held that neither the evidence before the trial judge nor the proposed fresh evidence on appeal supported the husband’s claim that he owed a significant contingent tax liability on the date of separation.
With respect to (3), the ONCA upheld the trial judge’s award. Though the wife had significant assets, they were not liquid and she had an immediate need for support. As the voluntary support paid to the wife formed the foundation of the trial judge’s refusal to order retroactive support, the husband was not entitled to receive a further credit towards ongoing support.
Interestingly, the ONCA found that “[t]he fact that the trial judge allowed either party to seek a review addresses the husband’s allegations of unfairness with respect to the inclusion of his pension income.” [There is no absolute bar on double-dipping, pursuant to the Supreme Court of Canada’s 2001 decision in Boston and the ONCA’s 2001 decision in Mieklejohn,but query whether the review truly addresses the husband’s allegations of unfairness.]
The wife cross-appealed, arguing that:
(1) the trial judge rendered insufficient reasons and thereby erred in failing to award: pre-judgment interest; the indexing of spousal support; security for spousal support; and compensatory spousal support;
(2) the trial judge erred in how he dealt with income from an excluded property used to make mortgage payments on that same property.
With respect to (1), the ONCA held that the trial judge’s reasons were sufficient, noting that there was no basis on which to require security for spousal support in light of the husband’s age (68) and the wife’s own substantial assets. The indexing of spousal support was not necessary in light of the review clause. Because the wife was receiving spousal support from the husband’s total income from his pension (which had already been equalized) it was not an appropriate case for prejudgment interest. The trial judge had made no error in concluding that the wife’s claim for spousal support was satisfied entirely by the non-compensatory support awarded.
In order to understand the wife’s second argument, some basic facts are necessary. The husband received rental income from an excluded property. He used the rental income to pay the mortgage on the property. The trial judge had determined that a portion of the rental income had increased the value of the property by $133,000, and added this amount to the husband’s net family property.
On appeal, the wife argued that the trial judge should also have added back the interest portion of the mortgage payments as well. The ONCA rejected this argument, noting that the trial judge’s calculations were grounded in the evidence and that, at trial, the wife’s counsel had agreed with the trial judge’s approach. It was therefore not open to the wife to now to object to it.
In light of the divided success, no costs were awarded for the appeal.
Link to the reasons here.
Pellew v. Pellew, 2016 ONCA 506
Sharpe, Lauwers and Miller JJ.A.
The appellant husband had lost his motion to set aside minutes of settlement. On appeal, he argued:
(1) that the motion judge erred in making credibility and reliability findings on the basis of affidavit evidence;
(2) that the motion judge was biased; and
(3) that he was denied natural justice or procedural fairness because there was no recording of the argument of the motion.
These arguments were summarily dismissed in a 3-paragraph endorsement, with the court stating that there is no legal requirement that argument be transcribed and that this is “standard practice” to dispense with the court reporter where both sides are represented by counsel.
Costs of the appeal of $10,000 were ordered against the appellant husband.
Link to the endorsement here.
Hersey v. Hersey, 2016 ONCA 494
Cronk, Blair and MacFarland JJ.A.
In response to the husband’s motion to decrease child support as a result of a child beginning post-secondary, the wife brought a motion for increased spousal support and retroactive spousal support and was unsuccessful.
On appeal, the appellant wife argued that the motion judge’s reasons were insufficient and that the motion judge had failed to properly apply the legal principles governing spousal support variations.
While acknowledging that the motion judge’s reasons left much to be desired, the ONCA dismissed the wife’s appeal on the basis that the reasons were sufficient “to tell the parties what the judge decided and why”.
The respondent husband cross-appealed the motion judge’s decision to not award any costs in his favour, despite his being the successful party at the motion. The ONCA dismissed the cross-appeal, noting that the motion judge was entitled to take into account derogatory remarks made by the husband that would have increased the conflict in the proceedings.
In the end, the wife was ordered to pay costs of the appeal of $8500.
Link to the reasons here.