In this case, the father challenged the constitutionality of the Federal Child Support Guidelines (“the Guidelines”).

Altra Vires:

First, the father argued that the Guidelines are unconstitutional because they are altra vires (a fancy Latin term that basically means overstepping authority) of the Divorce Act (the legislation under which the Guidelines were enacted).

He argued that the Guidelines are altra vires because they do not take into consideration (i) the relative abilities of parties to contribute to the maintenance of children, and (ii) the joint costs of separated parents to raise children.

(1) The Relative Abilities of the Parties to Contribute: The father argued that because the Guidelines only consider the payor’s income, they do not take the ability of both parties into account. He pointed out that the Quebec Child Support Guidelines take both parents’ incomes into account when determining child support payments and argued that the Federal Guidelines must do so as well.Justice Turnbull agreed that perhaps it is best to take the income of both parties into account when determining the amount of child support that must be paid, but this does not mean that there is anything unconstitutional about Parliament’s decision to calculate child support payments without considering the recipient’s income. When drafting the Guidelines, legislators considered this issue and made a difficult policy decision, which is exactly what they are required to do. Judges cannot overrule legislation just because they think the legislators could have made a better decision.

(2) The Joint Costs of Separated Parents: The father also argued that the Guidelines do not take into account the fact that payor parents spend money on their children in addition to the child support payments that they make when they exercise access with their children. According to the Guidelines, both parties must contribute to child support payments only when each party spends at least 40% of their time with the children. This often leads to parents making access decisions that allow them to pay the least amount of child support, instead of making access decisions based on what is best for the children.Justice Turnbull stated that it is unfortunate that some parents are more concerned about child support payments than time with their children when negotiating access agreements, but this does not mean that the legislative decision to enact this 40% rule is unconstitutional. He pointed out that this 40% rule was made because it makes the Guidelines clear and easy to apply, which is a key purpose of the Guidelines. Justice Turnbull explained that it is Parliament’s job to make these important policy decisions, not that of the Courts.

Breach of Charter Rights:

Secondly, the father argued that the Guidelines are unconstitutional because (i) they limit his freedom of expression (section 2(b) of the Charter of Rights and Freedoms), and (ii) they violate his right to equality (section 15(1) of the Charter of Rights and Freedoms).

(1) Freedom of Expression: The father argued that the Guidelines violate his freedom of expression because they restrict his ability to express that he is a parent actively involved in the lives of his children.Justice Turnbull held that the father provided no foundation for this argument.

(2) Equality Rights: The father’s argument that the Guidelines violate his right to equality can be summarized as follows:

a) Fathers usually pay child support (approximately 94% of the time), while women usually receive it.

b) The payor’s income is taken into account when determining child support payments, while the recipient’s income is not.

c) As such, men are usually required to pay child support based on their income and have an obligation not to be underemployed or intentionally unemployed, while women usually do not.

d) Therefore, the Guidelines discriminate based on gender, which is a violation of equality rights as defined by the Charter of Rights and Freedoms.

When determining if equality rights have been violated, one group must be compared to another. Here, the father compared payors of child support to those who receive child support payments.

Justice Turnbull decided that the father was comparing the wrong groups. The father should not have compared payors to recipients, but male payors to female payors, who are treated exactly the same under the Guidelines. Therefore, the Guidelines are not discriminatory because payors and recipients are not protected groups under the Charter of Rights and Freedoms and there is no gender discrimination when payors of different genders are compared.

In sum, Justice Turnbull provided a detailed explanation as to why the Guidelines are constitutional, and upheld their constitutionality.

This case deals with determining the valuation date, which becomes extremely important when claiming an equalization payment. The valuation date is based on the date that the parties separated and there was no reasonable prospect of resuming cohabitation. The contentious part of this case arose when the parties had to determine when they actually separated. The parties were married from July 3, 1987, and both parties were 48 years old at the time of the proceedings.

The Mother is claiming the parties separated on September 3, 2005. She argues that the above is their separation date because that is when she verified (e.g. drove to her best friend’s house to find the Father’s car parked there) that the Father was having an extra-martial affair with her best friend, despite his continual denial of such an affair. Subsequently, the Mother moved out of the matrimonial bedroom and moved to a bed in the den of the said home.

The Mother was devastated and unable to cope as a result of realizing that her best friend was having an affair with the Father. Also, the Mother stated that the parties acted in all respects as husband and wife until the purported separation date. For instance,

1. they continued their share of work in maintaining the household,
2. they continued to have joint accounts,
3. they continued to socialize both in an outside of the home with friends and family, and
4. they had voluntary sexual relations. It was only until September 3, 2005 that the parties confronted the children of the marriage to inform them that they were separating.

The Father is claiming that the parties separated on November 5, 2004. He argues that on the same day, the Mother moved out of the matrimonial bedroom. The Father stated that the parties had a Separation Agreement (“Agreement”) and the date contained within the Agreement was November 5, 2004. However, the Court was unwilling to use the separation date within the Agreement because they felt that the Mother signed the Agreement without appreciating the impact of such an Agreement. After all, she did not have any independent legal advice; there was no full financial disclosure between the parties; and the Father took advantage of her stress and vulnerability which compromises the integrity of the bargaining process.

The Court decided to set aside the Agreement as a result of the lack of material disclosure and unconscionability. Also, The Father unsuccessfully tried to use a family friend as a witness that would confirm the parties separated on the above noted date. However, the Court determined that the family friend posed serious creditability issues because of his inconsistent statements, and thus the Court did not give weight to the friend’s testimony.

Based on the circumstances of this case, the Court adopted the Mother’s date of separation as they found her account of events to be more plausible. Since the Court finalized the date of separation, the issue of calculating equalization and spousal support remained outstanding, and would proceed to trial.

This case deals with parents who have one child of the relationship that was five years old at the time of the Court proceeding. The Mother’s position was that she should have sole custody of their son, while the Father’s position was that there should be joint custody.

In June 15, 2006, the Mother brought a motion and was granted sole custody of the child, and access to the Father. However, the Father wanted the final Order of 2006 to be set aside. His reasoning was that he did not agree to sole custody and it was his understanding that the parties would have joint custody. The Father argued that it was a mistake that he made by leaving the Court prior to ensuring that a consent Order was made in accordance to his wishes of joint custody. The Father had ample opportunity to seek duty counsel for an understanding of the contents of the Order, and yet he deliberately decided to leave the Court without a proper understanding of the terms of the final Order.

The Court does not look highly upon individuals who delay in trying to set aside an Order. The legal principles the Court used to note the Father in default, and hence dismiss his claim include:

1. If the party is absent when an order is made, the party must move without delay to have the Order set aside. Unfortunately, the Father waited 21 months to launch this motion to set aside the Order;
2. The party is to provide a reasonable explanation in relation to the circumstance under which the party defaulted in attendance. The Court stated that there was nothing in the material that evidenced joint custody. Also, joint custody is not based on what the parties ask for rather it’s based on what is in the child’s best interests. As far as the Court was concerned, the Father never filed an Answer or attempted to materialize a defence against the Mother’s argument for sole custody. The Father had an obligation to inform himself of the Order by asking for assistance from duty counsel, the Court’s case management staff, or he could have personally attended the Courthouse, but he declined to; and
3. The party must put forth facts to show that there was and continues to be a genuine issue for trial. Since the Father had not filed any material with the Court, the Court believed at this juncture to reopen the issue of custody would only create undue stress on the child. The Court dismissed the Father’s motion to set aside the 2006 Order.

In the alternative, the Father requested that the Court refer the case to the OCL to have the issue of custody and access canvassed and assessed so that the parent who can better care for the child is granted sole custody. The Court was not willing to get the OCL to intervene as they felt this was a premature suggestion. The Court stated that the parents had not used their best efforts to settle the child’s distress by working cooperatively to ensure a relaxed transition between the parents’ households. The Court advised that the parents exchange offers to settle the access dispute. The Court decided that once the parties were willing to explore a “sincere and child-centred effort” to provide an access plan that is in the child’s best interests, the Court would revisit the access issue at a case conference.

This case is an appeal of a trial decision to allow the mother to take the parties’ three sons with her to Ottawa. Prior to trial, the boys lived primarily with their father in Thunder Bay.

Justice Pierce acknowledged that she could not reverse the trial decision simply because she would have made a different decision if she were the trial judge. Instead, she must find an error in law or fact finding in order to reverse the trial decision.

Justice Pierce concluded that there was an error in law because the trial decision lacked a full consideration of the relevant factors in mobility decisions (as outlined in the Supreme Court decision of Gordon v. Goertz) namely:

1. the existing custody arrangement and relationship between the child and custodial parent;
2. the existing access arrangement and the relationship between the child and the access parent;
3. the desirability of maximizing contact between the child and both parents;
4. the views of the child;
5. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; and
6. disruption to the child of a change in custody; and disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Justice Pierce determined that the trial judge also made fact finding errors.

Unfortunately, Justice Pierce could not simply overrule the trial decision and award the father primary residency of the children. This is because the children had been living with their mother in Ottawa since the trial, seven months earlier and the court had no evidence regarding the best interests of the children at the time of the appeal. As such, ordering that the children move back to live with their father may not be in their best interests. Instead, Justice Pierce ordered a new, expedited, trial to determine the children’s best interests.

The parties in this case were married in Turkey on September 21, 1995. They moved to Canada in 2006 and resided in Oakville, Ontario. They separated in 2008 and two motions were brought before the court.

The Applicant Mother was seeking an order for custody of the child of the marriage, namely, Onur Anamur, and the Respondent Father brought a motion seeking custody of the child and further that the child be transferred to Turkey along with the hearing of the herein matter.

In November 2009, the Respondent Father commenced a legal proceeding in Turkey. The Applicant Mother was not served with the appropriate motion materials. The Turkish Court made an interim order awarding the Respondent Father with guardianship of the child. Subsequently, in December, 2009 the Respondent Father brought this Motion relying on The Hague Convention arguing that the child was wrongfully removed from Turkey and section 22 of the Children’s Law Reform Act (CLRA), which provides the court with circumstances where an order regarding custody and access can be made.

Although the term ‘habitual residence’ is not defined in the Hague convention, the general principles to determine same are found in case law, (Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.) and Jackson v. Graczyk, 2007 CarswellOnt 3216). They are as follows:

• The question of habitual residence is a question of fact to be decided on all the circumstances;
• A person’s habitual residence is the place where that person resides for an appreciable period of time with a “settled intention” to do so;
• A “settled intention” is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family; and
• A child’s habitual residence is tied to that of the child’s custodial parent.

The child was residing in Ontario with the consent of the Respondent Father for the purposes of bettering the child’s life and education. The Respondent Father had sworn an affidavit in April, 2009, stating the following:

We immigrated to Canada on March 11th, 2006, but permanently moved to the province on December 11, 2006, hoping to give a better future our son, Onur.

The above further demonstrates the intention of the parties to reside in Ontario for the purpose of bettering the child’s life. Therefore, the court found that the Hague Convention had no application in the herein matter.

Section 22 of the CLRA gives jurisdiction to the Ontario Court to make an Order regarding the custody and access of the child.

Subsection 22(2) of the Act defines habitual residence as follows:
(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

Given that the child was living with the Respondent Mother in Oakville at the commencement of the application, the child was residing in Ontario for the purposes of section 22 of the CLRA.

The Applicant Mother’s motion was allowed. An order was made for sole custody of the child to the Applicant Mother. The Respondent Father’s motion was dismissed. The court did not recognize the order of the Turkish court as the Respondent Father had attorned to the jurisdiction of the Ontario Court.

This case deals with determining whether another home of a married couple, namely the cottage could be considered a matrimonial home at the date of separation. The cottage was registered in the Husband’s name and was an inheritance from his Mother.

The issue in this case is if there is a finding that the cottage is a matrimonial home, then the Husband could not exclude the cottage from his net family property. This would effectively mean that the married couple get to equally share the value of the matrimonial home. Of course the Husband argued that the cottage was not a matrimonial home and since it was an inheritance he would be able to exclude it from his net family property.

The decision has reinforced the well-known idea that parties may have more than one matrimonial home. According to section 18(1) of the Ontario Family Law Act (“FLA”) the definition of a matrimonial home includes:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

The Wife argued that the family used the cottage during the winter frequently. For the last four years of their marriage, the Husband spent more time at the cottage than at home. In comparison, the Husband stated that his Wife was disinterested in the cottage and that for the last two years of their marriage she hardly went to the cottage. As the marriage deteriorated, the Husband spent more time at the cottage.

The Court decided that the cottage was extensively used by the entire family from the date of marriage and on a going forward basis. The cottage was renovated by both parties through joint funds and joint labour. The family had spent the last two holidays leading up to the date of separation at the cottage. The Court made it patently clear that just because the Wife did not spend as much time as the Husband at the cottage because she had an inflexible work schedule, this does not override the fact that the parties and the children were at the cottage together. The important point is that there was family use that occurred up until the date of separation.

The Court clarified that under section 18(1) of the FLA, there is no condition that requires spouses to occupy the matrimonial home together or concurrently. It simply provides that both spouses must be occupying the home as a “family residence” at the date of separation. Arguably, if a family is using their cottage on weekends during the summer, there is a propensity to characterize the property as a matrimonial home. It is important that counsel be reminded that section 18(1) of the FLA does not mention that the asset (home) must be habitually used for family purposes or as accommodation.

There are situations where the Court is trying to determine whether there has been a change in user enough to alter the classification of the residence. In such situations, the Court should consider the following:

1. The Court should be given a time frame within which to decide whether the change in user has occurred;
2. The failure to use the property as a residence should be viewed in the context of an ordinary user, specifically look at whether in the past the residence was ordinarily used;
3. Has the user been altered since it was previously occupied; and
4. If the user is altered, is the difference sufficient to justify changing the characterization of the property?

Accordingly, the Court decided that the cottage was a matrimonial home at the date of separation. The Court made a point of saying that if a cottage is used on weekends during the summer, and a couple separate in the winter, and there is a lack of use during the winter, this does not negate the property as a matrimonial home.

In this case, the Boyles sought increased access with their three grandchildren. The mother objected to increased access because of the hostility that the Boyles had for her, because they showed favouritism for the eldest child, and because she was worried that the Boyles would allow their son, the children’s father, access with the children. The father was denied access because he was suffering from a drug addiction.

This case began when the mother fled with the children without telling the grandparents where she was going. When the grandparents found out where the mother was staying, they took one of the children with them and appeared to use this child as leverage to gain access with the other two children.

As social worker’s report recommended that the grandparents and the mother have joint custody of the children. This recommendation held little weight because it seemed to be founded upon the premise that the mother owed the grandparents gratitude for allowing her to stay with them when she was teenager.

Ultimately, Justice Tucker sided with the mother. She believed that the grandparents lacked credibility, that the mother’s witnesses were reliable, and that the fact that the mother fled from the Boyles, taking only a diaper bag with her, supported the mother’s claim that she only fled because the grandparents threatened to keep the children if she tried to leave.

The grandparents were denied further access with the children and the access schedule, whereby the grandparents spent every other Sunday with the children, was not varied. Justice Tucker stated that increasing access with the grandparents would only expose the children to more hostility, which is not in their best interests. She made it clear that the grandparents’ and the children’s love for one another did not mean that greater exposure to the grandparents was in the children’s best interests.

The grandparents’ Application was not entirely dismissed. They were granted birthday and Christmas access, as well as the right to be reasonably informed of, and participate in, any holidays or special events.

This case was a long motion heard by Justice Ellen MacDonald in the Ontario Superior Court of Justice in Toronto. The Applicant wife, Rachelle Tauber, was seeking to have her husband’s lawyer removed as the solicitor of record for the Respondent husband in their matrimonial matter. Ms. Tauber alleged that retaining the husband’s lawyer created a conflict of interest as she had previously spoken with that lawyer regarding her matrimonial matter and was thinking of hiring him.

In June of 2009, Ms. Tauber contemplated changing lawyers. She already had counsel at the time, but her friend had recommended that she speak with another lawyer. The husband subsequently hired that lawyer five months after the lawyer’s conversation with Ms. Tauber. Ms. Tauber spoke with the husband’s lawyer on the phone for seven minutes regarding her matter. The husband’s lawyer and Ms. Tauber arranged a meeting for the following week; however Ms.Tauber cancelled the meeting and she decided that she would like to continue being represented by her existing lawyer. The husband’s lawyer did not record any notes of the conversation that took place between them, nor was there a file opened for Ms. Tauber. Ms. Tauber alleged that the conversation contained confidential information, while the husband’s lawyer denied same.

Justice MacDonald considered the following question in determining whether there was a conflict of interest:

Does the seven minute telephone call with Ms. Tauber place the husband’s lawyer in a conflict of interest when he was retained by Mr. Tauber five months later?

The leading case on this issue is MacDonald Estate v. Martin. The court in that case asked two questions in order to determine whether a conflict of interest can be established:

1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand; and
2. Is there a risk that it will be used to the prejudice of the client?

The second part of the test can only apply if the confidential information has actually been received by the lawyer. Although Ms. Tauber claimed that she had given confidential information to the husband’s lawyer, she was not able disclose to the court what that information was and why the information was confidential. There was no evidence submitted to demonstrate that there was an exchange of confidential information. Therefore, Justice MacDonald found that the test could not apply in this particular case. If there is no confidential information provided, then there is no risk of prejudice to the client. Justice MacDonald held that the husband’s lawyer can continue to represent Mr.Tauber. Solicitor-client privilege could not be established in this case. Justice MacDonald found that a minimal amount of contact, such as a telephone call with a prospective lawyer, should not disqualify that person’s spouse from being able to retain that lawyer later on.

The motion was dismissed with costs.

This case deals with Section 46 of the Arbitration Act. The parties entered into a Separation Agreement that included a clause regarding dispute resolution. The parties agreed to resolve all issues that arise from the Separation Agreement through Mediation/Arbitration. Both parties were provided independent legal advice regarding the Separation Agreement.

Prior to the family arbitration session, the parties, who were common-law partners, signed an Arbitration Agreement. The Arbitrator had informed both parties of the change in legislation regarding family arbitrations, more specifically, that parties could not opt out of all rights of appeal.

The parties used arbitration to resolve their property issues, specifically the home of the relationship. Mr. Cunningham was arguing for an unequal interest in the home, specifically he wanted a 91% interest and his wife would get a 9% interest. . Conversely, Ms. Moran argued for a 50% interest in the home. At the end of the day, the Arbitrator decided to give the parties an unequal interest in the home; with Mr. Cunningham having a 70% interest and his wife having a 30% interest.

Since the arbitration award, Ms. Moran was unable to realize her interest in the property and Mr. Cunningham continued to dwell in the disputed home. Subsequently, Mr. Cunningham decided to challenge the arbitration award through two avenues: (1) an appeal; and (2) a Section 46 Motion.

The grounds for Mr. Cunningham’s Section 46 Motion was that the Arbitration Agreement is invalid because (a) the agreement to preserve some appeal rights was not done in writing; and (b) no certificates of independent legal advice were obtained. Mr. Cunningham’s Section 46 Motion was dismissed.

Mr. Cunningham decided to bring another section 46 Motion for reasonable apprehension of bias. The Court stated that Mr. Cunningham cannot bring a second motion under section 46 because he already argued section 46 in his first motion and had the opportunity to raise alleged bias then. Moreover, Mr. Cunningham had the opportunity to amend his pleading during his first motion to include alleged bias as he was aware of the bias at the time.

The Court determined that prior to Mr. Cunningham’s first motion; he had knowledge of the alleged bias through email correspondences between the Arbitrator and Mr. Cunningham. Mr. Cunningham had emailed the Arbitrator stating that the arbitration award should be invalidated because the Arbitrator had a conflict of interest with Ms. Moran. Allegedly, the Arbitrator had a close association with the University of Toronto, the same institution where Ms. Moran is the Dean of the Faculty of Law. As a result, it was Mr. Cunningham’s belief that any decision made by the Arbitrator would be reflective of actual bias and a serious lack of impartiality. The Arbitrator replied that he had never met Ms. Moran until the Arbitration, and just because he taught at the same school, this does not automatically mean that there is bias or an apprehension of bias. The Court dismissed the second motion as this was considered res judicata. This doctrine means that a person is precluded from bringing an action when the same cause of action has been already determined in earlier proceeding by the Court.

Once both motions were dismissed, there was an outstanding appeal that was left to be heard. However, the Court stated that Mr. Cunningham would have to pay for his motion costs before he proceeds to an appeal. Also, in his appeal, he would be unable to argue a reasonable apprehension of bias because he did not claim this issue in his initial proceeding.

The Miller v. Volk 2009 decision of the Honourable Justice Blishen concerns the application of Section 9 of the Federal Child Support Guidelines (Guidelines) and a shared parenting regime.

The parties entered into a separation agreement in 2003, which provided that the two children of the marriage reside equal time with each parent. The parties had agreed that the Respondent, Ms. Volk pay the Applicant, Mr. Miller child support based on the parties respective incomes at the time of the agreement using the set off or subtraction method. The Agreement between the parties formed part of the Divorce Order dated April 23, 2003.

Mr. Miller argued however, that there has been a material change in circumstances, namely that Ms. Volk’s income has significantly increased and this factor should be accounted for when determining the appropriate quantum of child support payable. Ms. Volk accepted that there was an increase to her income, however argued that her contribution to the children’s expenses for clothing, footwear and extracurricular activities etc, should be considered having regard to all of the factors in Section 9 of the Guidelines. They are as follow:

Section 9: where a spouse has access or physical custody of a child for not less than 40 percent of the time over the course of a year, the amount of child support order must be determined by taking into account the following:

1. the amounts set out in the applicable tables for each of the spouses;
2. the increase costs of the shared custody arrangements and;
3. the conditions, means, needs and other circumstance of each spouse and of any child for whom the support is sought.

The Supreme Court of Canada in Contino v. Leonelli-Contio analyzed section 9 of the Guidelines and emphasized that the set off approach is only a starting point and the weight of each factor under section 9 will vary according to the particular facts of each case.

Taking into account the Contino analysis as well as the parties Separation Agreement, Justice Blishen found that the set off formula should continue, however she also considered other factors in determining the appropriate amount of support. Justice Blishen took into account the following factors:

• The income disparity between the parties and two households,
• Ms. Volk’s partner’s contribution to her household,
• Mr. Miller’s partner’s pregnancy,
• Mr. Miller’s loss of his employment, and
• The parties’ respective net worths.

It is important to note that generally parties cannot make an agreement for children that contract out of the Guidelines, however in this circumstance the agreement between the parties did not disadvantage the children, therefore in such circumstances the court may not interfere with the parties arrangements.

To conclude, Justice Blishen ordered that the set off approach continue. Ms. Volk was ordered to pay 86 percent of the children’s expenses and Mr. Miller was ordered to pay 14 percent based on their respective incomes.