Lerners’ Weekly Family Caselaw Review # 12
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law Group presents one of the most interesting cases from the week of December 21, 2020:
The Divisional Court recently ordered a new trial be heard in an Application for the review of child support terms under Minutes of Settlement. The Court provided a helpful overview for the proper procedure in dealing with an Application for review and a reminder of the distinction between a variation and a review. Those terms, while similar, do not mean the same thing, and the use of one or the other in Minutes of Settlement has important implications for the steps required to change support provisions.
The parties in Verkaik v. Verkaik, 2020 ONSC 7993 (CanLII), have been involved in a long and protracted litigation on and off since their separation in 2006. They have one child of whom they share joint decision making authority and equal parenting time. The parties settled the financial issues between them by way of Minutes of Settlement.
Those Minutes set child support in the amount of $725 per month “fixed and non-variable for a period of 3 years” - from October 1, 2010 to October 1, 2013 and provided that the child support obligations under the Minutes “will be reviewable” as of July 1, 2013, with any new amount commencing October 1, 2013.
The father paid the support required by the Minutes for the three-year term and then stopped paying, on the basis that on review, his child support obligations would be reduced or eliminated altogether.
In 2015 the father brought an Application for review. At trial, the trial judge dismissed the father’s application for review, on the basis that he was unable to determine the appropriate incomes of either party on the evidence. The Trial judge’s Reasons did not refer to a monetary judgment in connection with monthly child support payments after October 1, 2013. However in the Trial judge’s Cost Endorsement, he stated that the child support under the Minutes continued to be payable and made reference to arrears owing.
The father appealed to the Divisional Court.
In their reasons for granting the father’s appeal and ordering a new trial heard, the Divisional Court reviewed the findings required on an Application for Review and the distinction between a review and a variation:
Canadian law has, for some time, recognized a clear distinction between a “motion to change” and a “review”: Leskun v. Leskun, 2006 SCC 25. A review involves an application for support without the need to prove a material change in circumstances. And, importantly for this case, unless the review is restricted to a specific issue (which, in this case, it is not), a “review” of support payable is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum: Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 63.
On a motion to change child support – a variation hearing – if the moving party does not meet his or her burden of establishing a material change in circumstance, the result is that the current support provisions remain in place. This is not the case on a review. A review is a fresh determination of support.
The Court found that while it was clear that the trial judge was frustrated with the quality of the evidence before him, it was not open to him to continue the child support under the Minutes in the context of a review unless he made findings with respect to the income of both parties and the impact of the shared parenting arrangement which supported $725 being the appropriate amount of child support. Those findings of fact were not made, nor could they have been made based on the evidence before the court.
Given that the parties had shared parenting of the child, section 9 of the Child Support Guidelines applied to the determination of child support:
9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
- (a)the amounts set out in the applicable tables for each of the spouses;
- (b)the increased costs of shared custody arrangements; and
- (c)the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
The Court found that the trial judge made two reversible errors:
First, it was an error of law “for the trial judge to make any order for payment of child support without first determining, on a de novo basis, the income of the parties for child support purposes.”
Second, it was a palpable and overriding error of fact to conclude “without evidentiary support or necessary findings of fact, that the appropriate amount of child support payable by the applicant father was $725 per month.”
Given these errors a new trial was ordered to determine the parties’ incomes and the impact, if any, of section 9 of the Child Support Guidelines.
This decision demonstrates the importance of parties understanding the difference between including “review” terms vs “variation” terms in Minutes of Settlement and the impact that has on the evidence to be led and the findings open to the judge ultimately hearing the application.
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