The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
In a legal system where the Court’s ability to trust a litigant’s evidence is paramount, being unreliable and untrustworthy will significantly impact one’s chances of success. Once the Court arrives at the conclusion that a party is not credible, it is an uphill battle to overcome that perception and obtain a ruling in that party’s favour.
The Court of Appeal’s recent decision in McMaster-Pereira v Pereira, 2021 ONCA 547 (“Pereira”) emphasizes the need for parties to act honestly and credibly in order to successfully advance their legal arguments.
Background
In Pereira, the parties were married in 2001 and divorced in 2013. They had four children between the ages of 9 and 20. In 2013, the parties executed Minutes of Settlement which dealt with access, and child and spousal support. The terms of the Minutes were incorporated into the final order of Graham J. The support was based on the father’s income of $109,000 and the mother’s income of $6,000. The father agreed to pay $3,000 a month, which was characterized as child support, and both parties were to provide updated income disclosure to each other yearly.
In July 2017, the mother commenced an action against the father seeking a retroactive increase of the child support paid by the father from 2014 onward. The father brought his own motion to dismiss the claim and to also change the parenting schedule.
The Decision
The income of the father, the amount of child support, and the parenting schedule for the youngest child were the key issues at trial. The trial judge noted there were obvious changes in circumstances that warranted changing the original order. The trial judge found that the father’s income was greater than previously disclosed, and that the father had taken active steps to conceal his income. The father was ordered to pay child support in the amount of $6,671 per month, retroactive child support totalling $222,484 ($3,708 per month) and costs totalling $204,913.81. Since the trial judge found that the father “cannot be trusted”, a charging order was placed against the father’s home and against his interests in any corporations. Finally, the trial judge ordered that the parenting time would be shared equally.
The Court of Appeal upheld all of these findings and dismissed the father’s appeal.
Application
The trial judge found that the father’s income for the 2017-2019 period was $415,272. He found that the father concealed his income by income-splitting with his girlfriend, not taking formal ownership of a vehicle, withholding information about cash income, and failing to disclose employment benefits. The father claimed that his salary was only $180,000 per year and that he was no longer receiving a cash income. The trial judge made credibility findings against the father, observing that in his testimony he was non-responsive, evasive and contradictory. As such, the father’s evidence was treated with considerable caution and given reduced weight.
Following the hearing of the Appeal, the Supreme Court of Canada released its decision in Colucci v Colucci, 2021 SCC 24, which set out a revised approach for cases where a recipient applies to retroactively increase child support. The parties had the opportunity to make submissions on the relevance of Colucci to this appeal, and the Court considered them. The Court found that the Trial Judge’s conclusion was consistent with the revised approach to applications for retroactive increases in child support set out in Colucci, and found there were no errors in the trial judge’s determination that retroactive child support was payable or in the quantum ordered.
Conclusion
One of the key issues underpinning the determination of child and spousal support is accurate disclosure. When a party actively deceives the Court, their credibility is harmed. Pereira is a good reminder of the steps the court may take to ensure that any such deception is corrected.
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