The Canadian Abridgment eDigests - Family Law - Ontario

28 Pages·2013·0.09 MB·English

The Canadian Abridgment eDigests - Family Law - Ontario
The Canadian Abridgment eDigests -- Family Law - Ontario
2013-46
November 11, 2013
FAM.III.5.c.vii
Subject Title: Family law
Classification Number: III.5.c.vii
Division of family property -- Assets which may be excluded from property to be divided -- Gifts and
inheritances -- Ontario
Parties’ married in 1972, had three children, and separated in 2008 -- Farm properties were gifted to husband
and wife jointly -- Milk quota was gifted in 1979 to husband solely and livestock was sold to him for $55,000 --
Between 1980 and 2002, parties acquired more farm properties and increased their milk quota and at time of
separation, parties jointly owned six properties, valued at $2,330,000 with debt of $1,411,574 -- Order divided
six properties between parties in satisfaction of equalization and spousal support payments -- Application judge
did not allow husband to claim expected capital gains tax liability that would arise from proposed sale of all
farm properties because sale was not inevitable -- Application judge determined milk quota was not gift since
consideration was given for transfer and milk quota that was ultimately sold was acquired through combined
efforts -- Application judge determined wife was entitled to spousal support indefinitely but ordered lump sum
payment of $160,000 -- Husband appealed -- Appeal allowed in part -- Application judge erred in not allowing
husband to treat as debt capital gains taxes he would incur on proposed sale of properties -- Application judge
should have determined whether it was more likely than not that assets would be sold, at which point
disposition costs would be incurred -- Also, evidence established that husband would have to sell property to
pay taxes and costs order, and, he would inevitably incurred capital gains tax -- There was no error in finding
that 1979 transfer of milk quota to husband was not gift; it was part of larger deal for which there was
consideration -- Given duration of marriage, and wife’s vulnerable position, it was open to judge to order
indefinite support -- Imputation of $40,000 to husband was reasonable given his investment in income earning
property and his experience -- Application judge had no jurisdiction to divide parties’ properties between them
-- Order was not necessary to ensure husband made equalization payment and it took away husband’s right to
highest price for interest in properties.
Buttar v. Buttar (2013), 2013 CarswellOnt 11488, 116 O.R. (3d) 481, 2013 ONCA 517, Goudge J.A.,
Rosenberg J.A., Tulloch J.A. (Ont. C.A.); additional reasons at (2013), 2013 ONCA 616, 2013 CarswellOnt
14061, M. Rosenberg J.A., M.H. Tulloch J.A., S.T. Goudge J.A. (Ont. C.A.) [Ontario]
FAM.III.6.h
Subject Title: Family law
Classification Number: III.6.h
Division of family property -- Valuation of specific assets -- Effect of costs upon sale of assets
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The Canadian Abridgment eDigests - Family Law - Ontario
Parties’ married in 1972, had three children, and separated in 2008 -- Farm properties were gifted to husband
and wife jointly -- Milk quota was gifted in 1979 to husband solely and livestock was sold to him for $55,000 --
Between 1980 and 2002, parties acquired more farm properties and increased their milk quota and at time of
separation, parties jointly owned six properties, valued at $2,330,000 with debt of $1,411,574 -- Order divided
six properties between parties in satisfaction of equalization and spousal support payments -- Application judge
did not allow husband to claim expected capital gains tax liability that would arise from proposed sale of all
farm properties because sale was not inevitable -- Application judge determined milk quota was not gift since
consideration was given for transfer and milk quota that was ultimately sold was acquired through combined
efforts -- Application judge determined wife was entitled to spousal support indefinitely but ordered lump sum
payment of $160,000 -- Husband appealed -- Appeal allowed in part -- Application judge erred in not allowing
husband to treat as debt capital gains taxes he would incur on proposed sale of properties -- Application judge
should have determined whether it was more likely than not that assets would be sold, at which point
disposition costs would be incurred -- Also, evidence established that husband would have to sell property to
pay taxes and costs order, and, he would inevitably incurred capital gains tax -- There was no error in finding
that 1979 transfer of milk quota to husband was not gift; it was part of larger deal for which there was
consideration -- Given duration of marriage, and wife’s vulnerable position, it was open to judge to order
indefinite support -- Imputation of $40,000 to husband was reasonable given his investment in income earning
property and his experience -- Application judge had no jurisdiction to divide parties’ properties between them
-- Order was not necessary to ensure husband made equalization payment and it took away husband’s right to
highest price for interest in properties.
Buttar v. Buttar (2013), 2013 CarswellOnt 11488, 116 O.R. (3d) 481, 2013 ONCA 517, Goudge J.A.,
Rosenberg J.A., Tulloch J.A. (Ont. C.A.); additional reasons at (2013), 2013 ONCA 616, 2013 CarswellOnt
14061, M. Rosenberg J.A., M.H. Tulloch J.A., S.T. Goudge J.A. (Ont. C.A.) [Ontario]
FAM.III.6.k
Subject Title: Family law
Classification Number: III.6.k
Division of family property -- Valuation of specific assets -- Farming assets
Parties’ married in 1972, had three children, and separated in 2008 -- Farm properties were gifted to husband
and wife jointly -- Milk quota was gifted in 1979 to husband solely and livestock was sold to him for $55,000 --
Between 1980 and 2002, parties acquired more farm properties and increased their milk quota and at time of
separation, parties jointly owned six properties, valued at $2,330,000 with debt of $1,411,574 -- Order divided
six properties between parties in satisfaction of equalization and spousal support payments -- Application judge
did not allow husband to claim expected capital gains tax liability that would arise from proposed sale of all
farm properties because sale was not inevitable -- Application judge determined milk quota was not gift since
consideration was given for transfer and milk quota that was ultimately sold was acquired through combined
efforts -- Application judge determined wife was entitled to spousal support indefinitely but ordered lump sum
payment of $160,000 -- Husband appealed -- Appeal allowed in part -- Application judge erred in not allowing
husband to treat as debt capital gains taxes he would incur on proposed sale of properties -- Application judge
should have determined whether it was more likely than not that assets would be sold, at which point
disposition costs would be incurred -- Also, evidence established that husband would have to sell property to
pay taxes and costs order, and, he would inevitably incurred capital gains tax -- There was no error in finding
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The Canadian Abridgment eDigests - Family Law - Ontario
that 1979 transfer of milk quota to husband was not gift; it was part of larger deal for which there was
consideration -- Given duration of marriage, and wife’s vulnerable position, it was open to judge to order
indefinite support -- Imputation of $40,000 to husband was reasonable given his investment in income earning
property and his experience -- Application judge had no jurisdiction to divide parties’ properties between them
-- Order was not necessary to ensure husband made equalization payment and it took away husband’s right to
highest price for interest in properties.
Buttar v. Buttar (2013), 2013 CarswellOnt 11488, 116 O.R. (3d) 481, 2013 ONCA 517, Goudge J.A.,
Rosenberg J.A., Tulloch J.A. (Ont. C.A.); additional reasons at (2013), 2013 ONCA 616, 2013 CarswellOnt
14061, M. Rosenberg J.A., M.H. Tulloch J.A., S.T. Goudge J.A. (Ont. C.A.) [Ontario]
FAM.III.6.k
Subject Title: Family law
Classification Number: III.6.k
Division of family property -- Valuation of specific assets -- Farming assets
Parties were married for 14 years and had substantial assets and debts at marriage -- Husband was retired and
wife was still employed -- Parties each owned their own homes -- Parties entered into partial minutes of
settlement, however, husband argued that his signature was forged -- Husband brought application for
equalization of net family property -- Application granted in part -- Husband used auction company to value
wife’s farm equipment, and wife used individual appraiser -- Appraiser testified in straightforward manner
whereas representative from auction company provided appraisal with no date and missing pages -- Evidence of
wife’s appraiser was preferred and formed basis for valuation of farm equipment -- Wife owed husband
equalization payment of $44,192.66.
McHale v. McHale (2013), 2013 CarswellOnt 13153, 2013 ONSC 5717, J.A. Desotti J. (Ont. S.C.J.) [Ontario]
FAM.III.10.b.xii
Subject Title: Family law
Classification Number: III.10.b.xii
Division of family property -- Matrimonial home -- Order for possession -- Miscellaneous
Order for immediate sale.
Freeman v. Freeman (2013), 2013 ONSC 4934, 2013 CarswellOnt 10276, S.M. Stevenson J. (Ont. S.C.J.);
additional reasons at (2013), 2013 ONSC 5756, 2013 CarswellOnt 12985, S.M. Stevenson J. (Ont. S.C.J.)
[Ontario]
FAM.III.11.g.i
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The Canadian Abridgment eDigests - Family Law - Ontario
Subject Title: Family law
Classification Number: III.11.g.i
Division of family property -- Practice and procedure -- Practice on appeal -- General principles
Standing -- Husband and wife engaged in matrimonial litigation -- At trial, wife was awarded title to cottage
property that was owned by numbered company of which husband was sole shareholder and officer -- Property
parcel register showed numbered company as owner approximately one month before trial occurred -- K
asserted that between date of search and date of trial, he purchased 50 percent interest in property from husband
-- K asserted that trial judge erred in law in vesting in wife 50 percent in property that husband did not own or
control -- Upon learning of pre-trial transfer of property, wife commenced new action against both husband and
K under Fraudulent Conveyances Act, and this action was pending -- K purported to appeal order under Family
Law Act which vested title to cottage property in wife -- Hearing was held to determine whether K had standing
to appeal vesting order -- K did not have standing -- K was not party to Family Law Act proceeding, and had
taken no steps to be added as party or to set aside order -- K did not have standing to bring appeal, and there
was no appeal properly before court -- Purported appeal was dismissed without prejudice to any steps open to K
to address vesting order.
Kutlesa v. Kutlesa (2013), 2013 CarswellOnt 12414, 2013 ONCA 549, E.A. Cronk J.A., G.R. Strathy J.A., R.A.
Blair J.A. (Ont. C.A.) [Ontario]
FAM.IV.1.b.iv
Subject Title: Family law
Classification Number: IV.1.b.iv
Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Causal connection
between need and marriage
Parties were married less than three years -- Parties lived together for about two years before marriage -- Parties
had one child -- Mother did not work outside home after birth of child -- Mother left matrimonial home with
child -- Father brought application for custody -- Order provided for equal time sharing relating to child on
week about basis with overnight access to other parent one night each week -- Father’s income for support
purposes in 2012 was $246,172 -- Income of $40,000 was imputed to mother -- Mother was entitled to on-going
spousal support on needs-based analysis -- Father had ability to pay -- Father was to pay spousal support of
$5,000 per month effective January 2010 -- On January 2016 amount of spousal support was to reduced to
$2,500 per month until end of 2016 when spousal support obligation would terminate -- Father was to pay child
support of $1,615 per month effective January 2012 -- Parties were to share special expenses in proportion to
their respective incomes -- Father’s child support obligation for June 2011 to December 2011 was $1,599 per
month and for January 2010 to May 2011 it was $1,966 per month.
Chase v. Chase (2013), 2013 CarswellOnt 12448, 2013 ONSC 5335, R.A. Lococo J. (Ont. S.C.J.) [Ontario]
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The Canadian Abridgment eDigests - Family Law - Ontario
FAM.IV.1.b.ix
Subject Title: Family law
Classification Number: IV.1.b.ix
Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Miscellaneous
Need -- Parties were married for 14 years and had substantial assets and debts at marriage -- Husband was
retired and wife was still employed -- Parties each owned their own homes -- Parties entered into partial
minutes of settlement, however, husband argued that his signature was forged -- Husband brought application
for spousal support -- Application granted -- Interim order obligated wife to pay $600 per month, and she
agreed to continue to pay this amount -- Wife’s income was $73,000 per year, and husband’s pension income
was $43,634.16 -- Application of Spousal Support Advisory Guidelines resulted in support of between $480
and $600 -- Issue of need did not form part of evidence before court, and since both parties owned homes, level
of support was reflection of life style expenses rather than actual need -- Husband’s argument that he was
entitled to one half income from oil and gas lease on property as well as one half of wife’s farming income was
dismissed since these revenues and expenses were included in wife’s income tax return, which formed basis for
spousal support award.
McHale v. McHale (2013), 2013 CarswellOnt 13153, 2013 ONSC 5717, J.A. Desotti J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.c.iii
Subject Title: Family law
Classification Number: IV.1.c.iii
Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse’s
annual income -- Imputed income
Parties separated in July 2008, after 11 years of marriage -- In June 2009, mother was granted custody of two
children, born in March 1999 and February 2001, youngest of whom suffered from autism -- On interim basis,
father was ordered to pay child support of $600, special expenses of $100 and spousal support of $500 per
month on income of $40,000 per year -- Mother had equivalent of grade 12 education, no special training and
earned $35,000 per year in factory job before being injured in motor vehicle accident in 2006 -- Mother’s only
current income was from child and spousal support, child tax benefits and disability payments for youngest
child -- While both children attended school, mother said youngest child’s needs left her on call and unable to
obtain full-time employment -- Father produced much confusing evidence, sometimes claiming to be employed,
but other times self-employed as courier, and claimed to have signed documents prepared by others without
reading them -- Father brought action -- At trial, only remaining issues were determination of child support and
of spousal support -- Order accordingly -- Given childcare duties and limited educational and employment
skills, appropriate to impute income of only $15,000 to mother for part-time employment -- Records indicated
father’s courier business had average gross income of $78,900 in last three years against reasonable expenses of
$13,250 -- However, it was clear that father had arranged business affairs to pay less income tax that would
otherwise be payable -- Therefore, income of $65,650 had to be grossed up before appropriate amount of
support determined -- Counsel directed to prepare submissions regarding appropriate amount.
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The Canadian Abridgment eDigests - Family Law - Ontario
Boateng v. Botsio (2013), 2013 CarswellOnt 12422, 2013 ONSC 4922, Daley J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.i.i
Subject Title: Family law
Classification Number: IV.1.i.i
Support -- Spousal support under Divorce Act and provincial statutes -- Time-limited award -- General
principles
Parties were married less than three years -- Parties lived together for about two years before marriage -- Parties
had one child -- Mother did not work outside home after birth of child -- Mother left matrimonial home with
child -- Father brought application for custody -- Order provided for equal time sharing relating to child on
week about basis with overnight access to other parent one night each week -- Father’s income for support
purposes in 2012 was $246,172 -- Income of $40,000 was imputed to mother -- Mother was entitled to on-going
spousal support on needs-based analysis -- Father had ability to pay -- Father was to pay spousal support of
$5,000 per month effective January 2010 -- On January 2016 amount of spousal support was to reduced to
$2,500 per month until end of 2016 when spousal support obligation would terminate -- Father was to pay child
support of $1,615 per month effective January 2012 -- Parties were to share special expenses in proportion to
their respective incomes -- Father’s child support obligation for June 2011 to December 2011 was $1,599 per
month and for January 2010 to May 2011 it was $1,966 per month.
Chase v. Chase (2013), 2013 CarswellOnt 12448, 2013 ONSC 5335, R.A. Lococo J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.j.iii.A
Subject Title: Family law
Classification Number: IV.1.j.iii.A
Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination --
Change in financial circumstances -- General principles
On consent, husband was ordered in 2005 to pay support of $3,100 per month based on annual income of
$120,000 -- Husband was incapacitated by stroke in 2011 -- Husband now had annual income of $53,000 from
non-taxable disability benefits -- Wife ceased working in 2009 allegedly for medical reasons and entered
common law relationship with JB in 2012 -- Husband brought motion to vary support -- Motion granted in part
-- Husband was ordered to pay $905 per month from date in 2012 when he stopped paying support -- Amount
was reduced by $100 each year to 2016 when it would be $505 per month -- Husband’s change in income was
material change in circumstances -- Wife’s evidence did not establish that she was unable to work and annual
income of $21,300 was imputed to her -- In absence of evidence of financial circumstances of JB, court inferred
that wife’s needs were at least reduced.
Colley v. Colley (2013), 2013 ONSC 5666, 2013 CarswellOnt 12531, J.W. Quinn J. (Ont. S.C.J.) [Ontario]
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FAM.IV.1.j.iii.A
Subject Title: Family law
Classification Number: IV.1.j.iii.A
Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination --
Change in financial circumstances -- General principles
Parties married in 1983, separated in 2000, and divorced in 2005 -- Pursuant to divorce order, husband was
ordered to pay $2,200 per month in spousal support for indefinite period and husband’s employment pension
for equalization purpose was valued at $103,000 assuming retirement at 60.2 years of age -- Between 2007 and
2010 husband underwent two heart-related surgeries and returned to work within three and six months
respectively, and husband commenced part-time work in 2011 due to blood pressure problems -- Husband
retired at age 55, began receiving unreduced annual pension of $68,000 effective March 2012 and husband
alleged retirement was medically necessary due to health problems -- Prior interim order reduced spousal
support to $1,400 and husband sought reduction of spousal support -- Wife was 62 years of age, unemployed
since 2006 and alleged family care responsibilities prevented wife from seeking other employment -- Husband
applied for variation of spousal support -- Application dismissed -- Order was issued reinstating spousal
supportorder of 2005 effective January 1, 2013 -- Husband failed to satisfy onus on balance of probabilities that
material change in circumstances existed sufficient to warrant variation of spousal support -- Husband
submitted no medical or vocational evidence to support medical necessity to retire early and husband’s
retirement was therefore voluntary, not material change -- Reinstatement of spousal support continued to
recognize wife’s economic disadvantage resulting from marriage breakdown.
Hesketh v. Brooker (2013), 2013 ONSC 1122, 2013 CarswellOnt 1866, [2013] O.J. No. 735, Turnbull J. (Ont.
S.C.J.); additional reasons at (2013), 2013 CarswellOnt 12671, 2013 ONSC 5433, Turnbull J. (Ont. S.C.J.)
[Ontario]
FAM.IV.1.j.iii.B
Subject Title: Family law
Classification Number: IV.1.j.iii.B
Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination --
Change in financial circumstances -- Change in needs of spouse
Parties married in 1997, separated in 2008 and were divorced in 2010 -- There were three children of marriage
and custody of children was joint -- Husband was 42 years old and worked for financial institution -- Husband
alleged that income for 2012 was $55,618 and income for 2013 would be $59,778 -- Wife was 40 years old,
suffered from remitting multiple sclerosis and dyesthesia and was employed as occasional teacher with school
board -- Wife’s projected income for 2013 was $14,048 -- Wife was found entitled to spousal support however
court declined to make order given husband’s limited ability to pay -- In December 2010 husband brought
motion for divorce judgement and was ordered to pay spousal support in amount of $500 per month -- Husband
contended that order for spousal support was based on wife’s allegation that her medical expenses were in
excess of $2,000 per month and that she would no longer be covered by husband’s health insurance plan upon
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granting of divorce, fact that wife’s mother ceased monthly gift of $1,400 and husband’s assignment in
bankruptcy -- Husband contended that wife’s medical costs were much lower than estimated, that wife
continued to receive assistance from her family, and that his bankruptcy had not left him in better financial
position -- Husband contended that spousal support should be $54 per month for 8 years -- Husband brought
motion for variation in spousal support -- Motion granted in part -- Order issued varying spousal support to
$250 per month -- While evidence was somewhat vague as to wife’s medical expenses, on balance there had
been reduction -- This factor combined with evidence that wife received financial assistance from family and
that husband did not appreciably improve his financial situation through bankruptcy, indicated material change
in circumstances and reduction in level of spousal support was warranted.
Leeson v. Leeson (2013), 2013 ONSC 5869, 2013 CarswellOnt 12473, Patrick Smith J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.j.iii.C
Subject Title: Family law
Classification Number: IV.1.j.iii.C
Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination --
Change in financial circumstances -- Change in means of spouse
Husband applied to vary spousal support -- Parties were married for 14 years and had two children -- Husband
was ordered to pay spousal support of $750 per month and child support of $1,033 per month -- Husband paid
support until December 2011 when he unilaterally stopped paying support -- Husband claimed his income had
significantly decreased -- Husband was employed as electrician with Ford for 16 years -- Husband voluntarily
ceased his employment because he saw opportunity to leave and commence his own business -- Husband
claimed he earned nearly nothing from self-employment -- Husband had remarried and his new wife was
unemployed -- Wife had worked during marriage but parties decided she should stay at home to care for
children -- Wife retrained after separation -- Wife now worked part-time as medical/laboratory technician --
Application dismissed -- Husband voluntary ceased his employment with Ford where he earned significant
income with benefits and pension -- Husband produced virtually no evidence of his income or his efforts to
generate income -- Husband failed to provide financial disclosure -- Husband was intentionally under-employed
-- It was not reasonable for husband to have chosen to cease his long-term, secure and well-paying employment
to pursue minimal self-employment when he knew he had ongoing support obligations -- Income of $80,000
per year was imputed to husband -- There was no basis to impute income to wife -- Wife had made all
reasonable efforts to obtain employment -- Wife’s income was $31,604 per year -- Wife had compensatory and
non-compensatory entitlement to and need for spousal support -- She had been forced to deplete capital and rely
on loans from family and friends to meet daily needs -- Despite her reasonable efforts, wife was unable to meet
her daily needs -- Wife was entitled to spousal support -- Husband was ordered to pay spousal support of $750
per month indefinitely.
Meissner v. Meissner (2013), 2013 ONSC 5621, 2013 CarswellOnt 12549, Fitzpatrick J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.l.i
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Subject Title: Family law
Classification Number: IV.1.l.i
Support -- Spousal support under Divorce Act and provincial statutes -- Enforcement of award --
General principles
Husband was in arrears of spousal support in amount of $10,032 -- Husband claimed his business was not
making enough money to allow him to pay arrears -- Wife brought motion to have husband’s pleadings struck
on basis that he failed to pay full amount of monthly spousal support -- Motion dismissed -- Husband’s
pleadings were not struck -- However, husband was ordered to pay full amount of arrears by end of wife’s case,
failing which he would not be permitted to bring forth any evidence on his own behalf -- Husband adduced no
evidence to support his assertions -- Wife provided evidence that husband received payment of $85,000 from
his business in January 2013 that he could have used to pay outstanding spousal support -- Husband simply
decided to pay lower amount of spousal support -- Husband had to be sanctioned for failure to comply with
order.
Smith v. Smith (2013), 2013 ONSC 5811, 2013 CarswellOnt 12917, D. Fitzpatrick J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.m.i
Subject Title: Family law
Classification Number: IV.1.m.i
Support -- Spousal support under Divorce Act and provincial statutes -- Practice and procedure --
General principles
Determining separation date -- Wife had immigrated to Canada from Kazakhstan with her daughter in 2000 --
Wife met husband in September 2004, and married him in May 2006 -- Marriage was doomed from outset --
Husband indicated parties had not had sexual relations for some time prior to May 2008 -- Husband told wife
on May 20, 2008 that he wished to separate -- Parties continued to live under same roof and share same bed --
Husband retained solicitor in August 2009 -- Husband provided wife with letter from solicitor dated October
15, 2009, indicating relationship was over -- Parties nonetheless continued to live under same roof and share
same bed -- Husband eventually commenced application for divorce and corollary relief -- Trial was conducted
to determine date of separation -- Date of separation, and valuation date for purpose of equalising net family
property, was October 15, 2009 -- After May 2008, there had been no usual indicia of separation -- Absence of
sexual relations had been norm prior to May 2008 -- Parties continued to eat meals together -- Husband
attended with wife and her daughter for family photo in July 2008 -- Parties continued to celebrate birthdays
and holidays together -- Husband indicated he was married on his 2008 income tax return -- Husband sent wife
and her daughter to Florida in August 2009 -- Husband had not retained solicitor until August 2009 --
Correspondence from solicitor dated October 15, 2009, made it clear that husband’s position was that parties
had separated -- Wife’s conduct indicated she was aware of separation and parties had conducted themselves
accordingly.
O’Brien v. O’Brien (2013), 2013 CarswellOnt 12747, 2013 ONSC 5750, McDermot J. (Ont. S.C.J.) [Ontario]
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FAM.IV.1.o
Subject Title: Family law
Classification Number: IV.1.o
Support -- Spousal support under Divorce Act and provincial statutes -- Quantum of support
Parties were married less than three years -- Parties lived together for about two years before marriage -- Parties
had one child -- Mother did not work outside home after birth of child -- Mother left matrimonial home with
child -- Father brought application for custody -- Order provided for equal time sharing relating to child on
week about basis with overnight access to other parent one night each week -- Father’s income for support
purposes in 2012 was $246,172 -- Income of $40,000 was imputed to mother -- Mother was entitled to on-going
spousal support on needs-based analysis -- Father had ability to pay -- Father was to pay spousal support of
$5,000 per month effective January 2010 -- On January 2016 amount of spousal support was to reduced to
$2,500 per month until end of 2016 when spousal support obligation would terminate -- Father was to pay child
support of $1,615 per month effective January 2012 -- Parties were to share special expenses in proportion to
their respective incomes -- Father’s child support obligation for June 2011 to December 2011 was $1,599 per
month and for January 2010 to May 2011 it was $1,966 per month.
Chase v. Chase (2013), 2013 CarswellOnt 12448, 2013 ONSC 5335, R.A. Lococo J. (Ont. S.C.J.) [Ontario]
FAM.IV.1.p
Subject Title: Family law
Classification Number: IV.1.p
Support -- Spousal support under Divorce Act and provincial statutes -- Effect of property division
Parties’ married in 1972, had three children, and separated in 2008 -- Farm properties were gifted to husband
and wife jointly -- Milk quota was gifted in 1979 to husband solely and livestock was sold to him for $55,000 --
Between 1980 and 2002, parties acquired more farm properties and increased their milk quota and at time of
separation, parties jointly owned six properties, valued at $2,330,000 with debt of $1,411,574 -- Order divided
six properties between parties in satisfaction of equalization and spousal support payments -- Application judge
did not allow husband to claim expected capital gains tax liability that would arise from proposed sale of all
farm properties because sale was not inevitable -- Application judge determined milk quota was not gift since
consideration was given for transfer and milk quota that was ultimately sold was acquired through combined
efforts -- Application judge determined wife was entitled to spousal support indefinitely but ordered lump sum
payment of $160,000 -- Husband appealed -- Appeal allowed in part -- Application judge erred in not allowing
husband to treat as debt capital gains taxes he would incur on proposed sale of properties -- Application judge
should have determined whether it was more likely than not that assets would be sold, at which point
disposition costs would be incurred -- Also, evidence established that husband would have to sell property to
pay taxes and costs order, and, he would inevitably incurred capital gains tax -- There was no error in finding
that 1979 transfer of milk quota to husband was not gift; it was part of larger deal for which there was
consideration -- Given duration of marriage, and wife’s vulnerable position, it was open to judge to order
indefinite support -- Imputation of $40,000 to husband was reasonable given his investment in income earning
10