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The following is an Ontario Court of Appeal decision, released October 25, 2011, relating to the issues of custody, and child and spousal support.

The parties, who were both well educated, ended their six-year marriage in July of 2007.  During the six year marriage however, the husband ran a successful dentistry practice while the wife stayed at home to raise the parties’ three sons.  Post separation, Justice Epstein affirmed, the parties’ relationship became increasingly dysfunctional such that they engaged in a 25 day trial dealing with every issue relevant to their separation.  While the parties were able to resolve issues relating to division of property and the husband’s income amongst themselves during the 25 day trial, other issues such as custody, access and child and spousal support were left for the trial judge to determine.  The outcome was that sole custody was granted to the wife, and the husband was ordered to pay child support in the amount of $4,816.00 per month as well as spousal support in the amount of $3,851.00 with a review on October 12, 2012. In additions, costs were granted to the wife in the amount of $245,000.00, $10,000.00 of which was to be deemed spousal support and enforceable through Family Responsibility Office (“FRO”).

The husband contested every order not in his favor given by the trial judge and hence the reason for the appeal. In her decision, Justice Epstein stated that the focus of appeal was to remain on the issues of custody of the children to which the issues of child and spousal support were related.

With regards to the issue of custody, the husband claimed that it was wrongly decided and that he was denied the right to a fair trial due to the trial judge’s refusal to admit certain evidence that he felt was necessary to the determination of custody, namely the following:

  • Tape recording of conversations between himself, the wife and the children (of which the wife had no knowledge);
  • A report by a social worker he hired to critique the court-ordered custody and access report; and
  • The reports and testimony of his psychologist who, according to the husband, was in a position to assist the court as to the appellant’s fitness as a father.

Justice Epstein quickly dismissed this claim by stating that firstly, the trial relied on solid principles relating not only to the public policy of trying to discourage the use of secretly recorded  conversations in family law litigation but also to the fact that the probative value of the tapes was minimal.  Secondly, the report of the social worker was not admitted based on the fact that it contained numerous frailties, and its value, which was to impeach the report of the court-appointed expert, could have been assessed by the husband through cross-examination and argument during the trial. Lastly, the reports of the husband’s psychologist were excluded as their inclusion was not justified.  The psychologist had no background in child psychology; he had never observed the children and his reports would have obviously been biased in favour of the appellant.

Justice Epstein also dismissed the husband’s malicious prosecution claim as unfounded as he failed to meet the requisite test in order to establish same.

The husband attempted to argue that his child support obligation should be varied and deviate from the Guidelines amount based on s.10(2)(a) of the Guidelines which deals with undue hardship as a result of the payor parent having an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living. The husband argued that the debt incurred as a result of the legal costs associated with his litigation, in the amount of 1 to 1.5 million dollars, satisfied s. 10(2)(a) and thus justified a variation in his child support order. However, Justice Epstein agreed with the trial judge who stated that the amount of money spent on litigation was both “staggering” and “out of proportion” as such he did not meet the onus he faced in demonstrating that the guidelines’ amount of child support did not apply.

Lastly, the issue of costs and the enforcement of same was the subject of this appeal as well as the wife’s cross appeal.  The husband argued against the enforceability of $10,000.00 through the FRO whereas the wife argued that the whole costs award, namely $245,000.00, should be enforced through FRO.

Pursuant to s.1(1)(g) of the Family Responsibility and Support Enforcement Act, a support order enforceable by FRO can include provision for legal fees or other expenses arising in relation to support. Therefore, in accordance with this section, Justice Epstein stated the trial judge did his best to identify the portion of the trial that was consumed by the support dispute, assign a cost amount to it and order that same be designated as support.  Justice Epstein supported his approach and further stated that it was in accordance with statute and case law pursuant to the case of Hatcher v. Hatcher.

With regards to the cross-appeal, Justice Epstein did not want to interfere with the discretion of the trial judge and was also of the view that designating the entire amount would be uncalled for.

As such, the $10,000.00 portion of the costs award remained enforceable by FRO against the husband personally as well as his dental practice and both the appeal and cross appeal were dismissed.