2016: THE YEAR IN REVIEW Philip M. Epstein, Q.C.

• A successful party in a family law case is presumptively entitled to costs - not full recovery costs

• An award of costs is subject to the factors listed in Rule 24(11), the directions set out in Rule 24(4), Rule 24(8), and Rule 18(4) and the reasonableness of the costs sought by the successful party

• See Chomos v. Hamilton (2016 CarswellOnt 15962) for a comprehensive overview of the essential cases on costs

Anderson v. Anderson2016 ONSC 7774

• Excellent and thorough custody/jurisdictional dispute in which the mother claimed the children would suffer serious harm if returned to their habitual residence, Dubai

• Justice LeBlanc confirmed that the children’s habitual residence is the jurisdiction best suited to a determination of the child’s best interests

• The existence of different cultural values in the child’s habitual residence does not override the law regarding jurisdiction

Heath-Breakspear v. Breakspear2016 CarwellNfld 452

• In R. v. James, the Tax Court held that a large lump sum retroactive payment could be deducted by the husband and taxed to the wife

• In analysing what tax rate to use, the court must consider the position of the parties had the payments been made when due

• The mid-point position between the parties’ respective tax rates is not the default position

Charron v. Carriere2016 CarswellOnt 18891

• A comprehensive review of Miglinv. Miglin in the Saskatchewan Court of Appeal

• One of the very rare cases in which a husband/payor has been able to use Miglin to reduce his spousal support obligation

Radu v. Radu2016 CarswellSask 729

• A very helpful analysis of the relationship between spousal support orders made under section 15.2 of the Divorce Act and variation applications under section 17 and the interplay between Miglin and LMP

McMorran v. McMorran2016 CarswellAlta 1880

• A very useful discussion about the determination of income and, in particular, whether, and perhaps when, a court should average income in order to determine appropriate support

• The language of section 17(1) of the Child Support Guidelines is permissive, not mandatory – even if a court is to consider the last three years of income, there is no requirement that it be averaged

Quiquero v. Quiquero2016 CarswellOnt 19216

• The husband appealed the Minister’s disallowance of claimed non-refundable tax credits

• Section 118(5.1) of the Income Tax Act has always been interpreted strictly – “the court has no alternative but to dismiss the husband’s appeal however sympathetic the court may be”

Harder v. Her Majesty the Queen2016 CarswellNAT 4358

• This is the quintessential judgment about the issue of family pets, and in particular, dogs

• “…after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

Henderson v. Henderson2016 SKQB 282

• The Ontario Court of Appeal addressed the issue of critique reports in M. v. F., 2015 ONCA 277

• Justice Kent of the Supreme Court of British Columbia agrees with the Ontario position that only rarely will such evidence be necessary or appropriate

Dimitrijevic v. Pavlovich2016 CarswellBC 2316

• An important judgment of the Ontario Court of Appeal signalling a new direction as to how the court will proceed when they are confronted with an appeal in the face of non-compliance with a family law judgment below

• “…the court will normally not hear the appeal until the trial order has been complied with.”

A.A. v. A.G.2016 CarswellOnt 14143

• A good discussion of whether the court can order reunification counselling in the face of an allegation of alienation

• Justice Jarvis finds that the jurisdiction to order therapeutic counselling can be found in sections 24(2) and 28(1)(b) and (c)(vii) of the CLRA but such orders are to be made sparingly

Testani v. Haughton2016 CarswellOnt 14573

• An in depth analysis of the Spousal Support Advisory Guidelines and the principles emanating therefrom

• “…the SSAGs are income-based guidelines that require careful attention to the actual incomes, or the income earning capacities, of both spouses. Where…a party’s income is in dispute, it makes little sense to determine the amount of spousal support that is payable solely by applying the SSAGs ranges without considering the SSAGsprovisions for determining income.”

Mason v. Mason2016 ONCA 725

• The Children’s Lawyer was appointed to represent the 13-year-old child and there was a comprehensive section 30 assessment done under the CLRA

• The trial judge conducted a judicial interview of the child and the child’s wishes were one factor the trial judge considered in making his decision

• For those judges who have not considered a judicial interview or how one should be conducted, they may find this an interesting template

Eustace v. Eustace2016 CarswellOnt 12687

If only he’d been nice to Fluffy.

If only he’d been nice to the Applicant.

If only the Respondent had remembered the two magic words in custody cases.

Be nice.

Chomos v. Hamilton2016 CarswellOnt 13157

• The Ontario Court of Appeal’s decision makes it clear that habitual residence cannot be interfered with on a temporary basis

• “To find that a child’s habitual residence can be changed by the unilateral actions of one parent during the period of a time-limited consensual absence undermines the purpose and efficacy of a carefully crafted scheme to deal with child abduction and wrongful retention.”

Balev v. Baggott2016 ONCA 680

• The trial judge erred in law when she failed to consider the “first-family-first” principle and the voluntary nature of the husband’s decision

• An obligation to a second family must be considered in context –part of the context is the voluntary assumption of an obligation

Dean v. Dean2016 CarswellOnt 10492

• This is a useful case on the principles of bifurcation

• It will be a rare case where bifurcation will be ordered when the moving party is seeking to set aside the spousal support terms of the agreement in accordance with a Miglin v. Miglin analysis as an alternative to setting aside the agreement

Dove v. Dove2016 CarswellOnt 10208

• The Family Law Rules do not adequately cover service of documents outside of Canada, nor can they be construed as constituting a complete code with respect to service of documents internationally

• Counsel should take note of the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters (also known as the Hague Service Convention) as it applies in all cases in civil or commercial matters

Wang v. Lin2016 ONSC 3967

• This thoughtful decision by Justice Brown of the Ontario Court of Appeal reviews the principles with respect to a retroactive variation order under section 17 of the Divorce Act and has important lessons for the family law bar and for clients who fail to make full, timely and accurate financial disclosure

Gray v. Rizzi2016 ONCA 152

• The Ontario Superior Court of Justice recognized, for the first time in Ontario, the new tort of public disclosure of private embarrassing facts

Jane Doe 464533 v. N.D.2016 ONSC 541

THANK YOU