Appealing an Interim Parenting Order in BC Family Court

Family litigation is not always a swift process and it is not unusual for the Court to make temporary orders pending the final outcome at trial. Temporary orders are called interim orders and they can deal with a variety of matters including parenting arrangements. Often, in BC, interim orders are made by masters of the Court – ie junior judges.

A master’s interim order is subject to review by a higher judicial authority, like a Supreme Court judge. The recent case of P.T. v. K.T. 2015 BCSC 2021 teaches family lawyers how to stickhandle appeals of master’s interim orders on parenting issues.

The usual test on appeal of a master’s interim order is whether the decision is clearly wrong (see Abermin Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188). If so, the master’s decision is set aside and the appellate Court may substitute its own decision. Thus, the standard is “clearly wrong” and the remedy is a substituted decision.

But where the master’s decision deals with parenting arrangements that may directly impact upon the fundamental issue in dispute, the standard and remedy are different. On appeal, the appellate Court will embark upon a case by case analysis to determine whether the interim decision is likely to have a direct bearing on a fundamental trial issue; this is the standard of review. If the standard is met, the remedy is a rehearing. If the standard is not met, the appellate Court’s decision may be implemented if the interim decision is clearly wrong.

What is not discussed in P.T. v. K.T. is the cost of appealing an interim order. The astronomical cost of litigation is a concern in almost every case, so P.T. v. K.T. is, for most British Columbians, purely academic.

But we can still learn from the case. Effective advocacy involves cost consciousness. If a master’s order is likely to have a fundamental impact on trial issues, counsel should beg for a without prejudice order so as to circumvent the appeal process. This does not solve the problem of creating a new status quo for the children but, assuming appeals are almost always unaffordable, it is better than nothing.
Jeffrey L. Hartman

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Retroactive Child Support in Ontario

The Honourable Justice Sherr of the Ontario Court of Justice issued a refresher on retroactive child support principles last week in Green v. Monah, 2015 ONCJ 368.

D.B.S. v. S.R.G, 2006 SCC 37, is the leading case on retroactive child support applications. There, the Supreme Court of Canada directed courts to consider four points in assessing such applications:

The existence of a reasonable excuse as to why support was not sought earlier;

  1. The conduct of the payor;
  2. The circumstances of the child; and
  3. Any hardship occasioned by a retroactive order.

As is so often the case, no single factor is determinative and the totality of the circumstances must be examined. The court must be guided by the payor’s interest in certainty balanced against fairness and flexibility.

As a general rule, any award is made retroactive to the date of effective notice (but no further than three years). “Effective notice” means any indication that support should be paid or paid in a greater amount. It is sufficient to simply broach the subject. However, the recipient must continue moving forward, either by continuously pressing the payor or applying to court. A failure in this regard may vitiate effective notice in favour of the payor’s interest in certainty.

Interestingly, the quantum is not bound to the guideline table amount, but rather is determined in light of what is reasonable under the circumstances. The court can adjust the duration of the retroactive order to effectuate a reasonable award.

Justice Sherr goes on to remind that the same principles apply to section 7 retroactive applications.

This case is an easy read and should be kept in the Ontario family lawyer’s back pocket.

Jeffrey L. Hartman

Applications for Review versus Applications to Vary in BC

Life changes. Sometimes those changes necessitate legal changes. To family lawyers, certain life changes pose a challenging procedural issue, namely, whether to bring an application to vary or review. The Supreme Court of BC recently helped clarify the choice in Cotter v. Cotter, 2015 BCSC 1730.

In Cotter, father was terminated from his employment shortly before trial, resulting in orders that mother pay non-compensatory spousal support and child support to father. Trial occurred in April 2015 and a spousal support review date of July 1, 2015 was fixed.

Father’s Employment Insurance had run out. He had no new employment by the review date and consequently asked mother for increased child and spousal support. Mother declined and alleged he was voluntarily unemployed.

Father made two applications to Supreme Court, which were unsuccessful, and appealed to the Court of Appeal, which was also unsuccessful. Undeterred, father returned to the Supreme Court with the present application.

Mr. Justice Greyell articulated the issues as follows:

  1. Is this an application to vary or review?
  2. If to vary, is there a material change in circumstances?
  3. If for review, should there be a hearing de novo?

Family lawyers must be aware that applications to vary and for review are fundamentally different.

Variation is governed by Divorce Act s. 17 which, essentially, requires a material change in condition, means, needs, or other circumstances since the last order was made. Section 167 of the Family Law Act is generally consistent with section 17.

The Supreme Court of Canada gave some guidance on the material change of circumstances test in Willick v. Willick, [1994] 3 S.C.R. 670, stating:

[a material change is] a change that, if known at the time, would likely have resulted in different terms… if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

Mr. Justice Greyell cited L.M.P. v. L.S., 2011 SCC 64 for the propositions that the analysis must focus on the prior order and the circumstances in which it was made, and the material change must generally have some degree of continuity and not merely be a temporary set of circumstances.

He also cited the recent Court of Appeal decision of Dedes v. Dedes, 2015 BCCA 194:

the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount to an appeal of the original order…

Applications for review are governed by sections 168 of the FLA and 15.2(3) of the Divorce Act, both of which allow or require the parties to return to court for review. These orders are called review orders, and the Supreme Court of Canada welcomed such orders in Leskun v. Leskun, 2006 SCC 25. Review orders should be used where there is a genuine and material uncertainty at the time of the original trial regarding the spouses’ financial situation in the near future.

The Court of Appeal added, in Morck v. Morck, 2013 BCCA 186, that the applicant need not establish a material change of circumstances on an application to review because it is a hearing de novo. This principle is embedded in section 168(3) of the FLA.

With respect to drafting a review clause, it should be as precise as possible regarding what is subject to review, according to Jordan v. Jordan, 2011 BCCA, 518. Of course, it is far less costly and time consuming to institute a review date in the first instance.

In the end, Mr. Justice Greyell determined that father had, in substance, applied for review. He was self-represented. The trial judge ordered review after 15 months. The Supreme Court Family Rules promote a just, speedy, and inexpensive process. These factors engendered Mr. Justice Greyall’s conclusion. Father’s income was imputed and mother was awarded her costs.

Cotter is an important decision because it shows us how to determine whether to bring an application to vary or application for review, and how to approach those applications.

Jeffrey L. Hartman

Appealing a Master’s Decision in BC Family Court

McDonald v. McDonald, 2015 BCSC 1285, http://www.courts.gov.bc.ca/jdb-txt/SC/15/12/2015BCSC1285.htm, is a lesson to lawyers thinking of appealing a master’s decision. In this case, wife appealed a decision denying her application for interim spousal support.

Ralph’s Auto Supply (BC) Ltd v. Ken Ransford Holding Ltd, 2011 BCSC 999, sets out the standards of review for a master’s decision:

  1. Review of a purely interlocutory decision of a master is a true appeal and the decision must not be interfered with unless it is clearly wrong.
  2. A question of law, a final order or a ruling that raises questions vital to the final issue in the case are reviewed via a rehearing on the merits based on the record before the master; even where discretion is involved, the appellate judge may substitute his or her own view for that of the master.

De Grandis v. De Grandis (1990), 48 B.C.L.R. (2d) 53 (S.C.) settles the issue that an appeal of master’s decision to grant or deny interim spousal support should not be interfered with unless it is clearly wrong. Such decisions are interim and do not fetter the trial judge’s discretion later on.

While an application for interim support is certainly not unusual, the facts before the master were. The applicant disputed the validity of a separation agreement, an issue requiring trial. Further, the applicant had already collected funds under the agreement and interim support could lead to double recovery. Lastly, the applicant delayed bringing her application for support and the delay may bar her entitlement.

Citing Robles v. Kuhn, 2009 BCSC 1163 for the principle that interim support should only be ordered where a prima facie case for entitlement exists, the Court denied the appeal on the basis that the applicant failed to establish anything clearly wrong with the master’s decision. Costs were awarded to the respondent.

Lawyers must be very careful in appealing masters’ decisions and, as a practice note, should require clear and written instructions from clients before doing so.

Jeffrey L. Hartman

Temporary Spousal Support in Ontario

The Ontario Court of Justice released Carty-Pusey v. Pusey, 2015 ONCJ 382,http://www.canlii.org/en/on/oncj/doc/2015/2015oncj382/2015oncj382.html, on July 6, 2015, and is a good refresher on the principles underlying interim spousal support.

The parties were childhood acquaintances in Jamaica who had reconnected later in life at which time the respondent husband lived in Ontario. One thing led to another and the respondent agreed to sponsor the applicant’s citizenship application. Sadly, their love did not last.

Justice O’Connell cites Kowalski v. Grant, 2007 MBQB 235 (CanLII), for the principles on dealing with temporary spousal support motions:

  1. Interim support is to provide income for dependent spouses from the time the proceedings begin until trial.
  2. The Court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. This task is left to the trial judge.
  3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
  4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

A number of further considerations were added in Robles v. Kuhn, 2009 BCSC 1163 (CanLII):

  1. On interim support motions, needs and ability take on greater significance.
  2. On interim motions, the need to achieve self-sufficiency is of less importance.
  3. Interim support should be ordered within the SSAG range unless exceptional circumstances dictate otherwise.
  4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

In determining entitlement, the court must also consider the spousal objectives set out in section 38(8) of Ontario’s Family Law Act:

(8) An order for the support of a spouse should:

  • Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse:
  • Share the economic burden of child support equitably;
  • Make fair provision to assist the spouse to become able to contribute to his or her own support; and
  • Relieve financial hardship, if this has not been done by orders under Part I (family property) and II (matrimonial home)

Finally, Justice O’Connell mentions the three bases for spousal support fromBracklow v. Bracklow [1999] 1 S.C.R. 420:

  1. Compensatory: based on the economic circumstances of each spouse’s role during the marriage;
  2. Non-compensatory: based on need in circumstances where a spouse cannot become self-sufficient; and
  3. Contractual: based on an agreement between the parties.

Justice O’Connell found the claimant entitled to spousal support on a non-compensatory basis as well as contractual basis because the respondent agreed to sponsor her and meet her financial needs for three years after they wed. Further, the law is clear that the existence of an immigration sponsorship agreement is a relevant factor, although not necessarily determinative, when considering entitlement to spousal support.

In the end, the respondent was ordered to pay $1,000 per month and arrears were fixed at $4,000.

This is an excellent case for Ontario family lawyers to keep in mind as it is recent comprehensive review of the law of spousal support in Ontario.

Jeffrey L. Hartman 

Mental Health issues in Ontario Family Law

On July 14, 2015, Justice Sherr of the Ontario Court of Justice gave his decision inS.M. v. E.M., 2015 ONCJ 387,http://www.canlii.org/en/on/oncj/doc/2015/2015oncj387/2015oncj387.html, a case illustrating the very difficult mental health issues faced by lawyers, courts, and families.

The father moved to change a 2011 court order and thereby obtain access to his son and terminate a restraining order against the mother.

Sadly, the father had a long history of mental illness exhibited by disturbing and delusional behaviour. He also had ample involvement in the criminal justice system for, among other things, sending threatening letters to the Prime Minister. Children’s Aid Society had prior involvement in the family and the child at the heart of the dispute suffered from Autism Spectrum Disorder and developmental delays. The father’s mental health had stabilized since the 2011 and he enjoyed supervised access to the child. By the time of the present motion, however, his mental health had greatly deteriorated.

Justice Sherr observed that section 29 of the Children’s Law Reform Actempowers the Court to vary custody and access orders where there is a material change in circumstances that affects or is likely to affect a child’s best interests.Gordon v. Goertz 19 R.F.L. (4th) 177 S.C.C. provides the “material change” test:

  1. The party seeking the change in custody or access must meet the threshold establishing a material change in relation to the child.
  2. If the threshold is met, the court must embark upon a fresh inquiry in to the child’s needs and the ability of each parent to meet those needs.

Not surprisingly, the father failed to meet the threshold requirement. His motion was dismissed and Justice Sherr further ordered that the father was barred from bringing any other motion without leave of the Court. This case surely was difficult for everyone involved and is a reminder of mental health issues in family law.

Jeffrey L. Hartman 

Contempt of Court in Ontario Family Court

A number of issues are addressed in Courtney v. Sambray, 2015 ONSC 5488, released by the Superior Court of Justice on August 27, 2015, but this article focuses on the father’s contempt of court.

This case is important to Ontario family lawyers because it demonstrates how to use motions for contempt of court and costs awards under appropriate circumstances.

Briefly, the father denied access to the mother contrary to an interim order. The mother successfully brought a motion to find him in contempt.

The Court began its analysis by noting that it has extensive remedial power to address contempt under Family Law Rule 31 (15), which provides:

If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.  O. Reg. 114/99, r. 31 (5).

The mother did not seek any of these remedies because the father began complying with the order and doing so would almost certainly sour an already strained co-parenting relationship. Instead, the mother asked for her costs on a full recovery basis.

The Court did award her costs on a full recovery basis under Rule 24 (8) because, as a general rule, contempt of a court order will usually amount to bad faith.

Family lawyers face our share of uncooperative litigants. Courtney v. Sambray, in its straightforward analysis of Family Law Rules 31 (5) and 24 (8), teaches us how to use two tools to overcome obstacles in appropriate circumstances.

Jeffrey L. Hartman