Hello everyone,

Below are the summaries of this week’s Ontario Court of Appeal decisions.  Topics covered include summary judgment, new issues on appeal, child and spousal support payment calculations, appeal rights under the Bankruptcy Act, and priority of creditors in garnishments proceedings.

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback.

Enjoy the long weekend.

Lea Nebel

Blaney McMurtry LLP

lnebel@blaney.com

Tel: 416. 593.3914

http://www.blaney.com/lawyers/lea-nebel

Table of Contents

Civil Cases

Menzies Lawyers Professional Corporation et al. v. Morton, 2015 ONCA 553 (click on the case name to read the summary)

Keywords: Bankruptcy and Insolvency General Rules, s. 31(1), Bankruptcy and Insolvency Act,  Extension of Time, Leave to Appeal, Re Tots and Teens Sault Ste. Marie,  Thomas Gold Pettingill LLP v. Ani-Wall Concrete Forming Inc.

790668 Ontario Inc. v D’Andrea Management Inc., 2015 ONCA 557 (click on the case name to read the summary)

Keywords: Summary Judgment, Hyrniak

Abuzour v. Heydary, 2015 ONCA 565 (click on the case name to read the summary)

Keywords: Insurance Law, Liability Insurance Policy, Garnishment, Enforcement of Garnishment Order, Setting Aside or Varying Garnishment Order

Richter LLP v. Big Truck TV Productions Inc.2015 ONCA 567 (click on the case name to read the summary)

Keywords: Garnishment Hearings, Debtors and Creditors, Garnishable Debts, Irrevocable Directions,  Priority of Creditors, Rules of Civil ProcedureTaxation Act, Corporations Tax Act, Personal Property Security Act, Costs.

Maple Leaf Foods Inc. v. Ryanview Farms, 2015 ONCA 566 (click on the case name to read the summary)

Keywords: Damages, Implied Warranty, Agriculture, Diseases Animals, Sale of Goods Act

Whiteman v. Iamkhong, 2015 ONCA 564 (click on the case name to read the summary)

Keywords: New Issues on Appeal, Summary Judgment, Sponsorship Undertaking, Permanent Resident status, HIV status, Limitations Act, ss.4, 5, 10 and 16(1)(h), Kaiman v. Graham

Holman v. Holman2015 ONCA 552 (click on the case name to read the summary)

Keywords:  Child Support Payment Calculation, Spousal Support Payment Calculation, Divorce ActFederal Child Support Guidelines, Spousal Support Advisory Guidelines,  Standard of Review,Hickey v. Hickey, Material Change in Circumstances

For a list of Criminal Law decisions, click here.

Menzies Lawyers Professional Corporation et al. v. Morton, 2015 ONCA 553

[Lauwers J.A.] (In Chambers)

Counsel:

D. G. Menzies, acting in person.

S. Lauriault, for the Attorney General of Canada.

Keywords: Bankruptcy and Insolvency General Rules, s. 31(1), Bankruptcy and Insolvency Act,  Extension of Time, Leave to Appeal, Re Tots and Teens Sault Ste. MarieThomas Gold Pettingill LLP v. Ani-Wall Concrete Forming Inc.

Facts:

The applicants, Menzies Lawyers Professional Corporation and Douglas Menzies, represented the bankrupt, Edwin Morton, in complicated matrimonial proceedings that eventually settled on terms which required the wife to pay to the husband amounts exceeding $250,000.00. Mr. Morton was unable to pay as a result of the financial constraints of the multiple proceedings initiated by the wife and the retainer agreement between Menzies and Morton provided that interest would be charged on the outstanding balance at 10% with the amounts paid from the proceeds of the matrimonial home. The applicant law firm applied for a solicitor’s lien for about $133,000 and a charging order to protect its accounts out of Morton’s estate. The applicant, Menziesbank, also applied for a salvage lien, the amount it paid two execution creditors’ interests so that the sale of the matrimonial home could close. The application judge refused to grant the solicitors a charging order or to grant Menziesbank a salvage lien.  The applicants seek an extension of time to file a notice of appeal and for leave to appeal the order of the application judge.

Issues:

  1. Do the applicants require an extension of time to serve the notice of appeal?
  2. Is leave required for the appeal itself under s. 193 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”)?

Holding:

Appeal allowed. Extension of time for the applicants to file the notice of appeal to October 30, 2014 to validate its filing nunc pro tunc, and  application granted for leave to appeal under s. 193(e) of the BIA. Since the applicants are seeking an indulgence, it is reasonable to make a costs award in favour of the respondent,  fixed at $1,500.

Reasoning:

  1. The applicants were under the mistaken impression that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) applied to this appeal so they had 30 days to appeal. Since this was a decision of the Bankruptcy Court, they only had 10 days “or within such further time as a judge of the Court of Appeal stipulates” under rule 31(1) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368. The following factors must be considered in exercising discretion to extend the time for filing the notice of appeal:
    1. whether the applicant had a bona fide intention to appeal before the expiration of the appeal period;
    2. any explanation for the delay in filing;
    3. any prejudice to the responding parties caused by the delay; and
    4. the merits of the proposed appeal.

The first three factors were satisfied and the fourth factor dovetails with the applicants’ appeal rights under s. 193 of the BIA.

  1. Section 193 of the BIA governs appeal rights. The relevant grounds for this motion are found in paragraphs (c) and (e):

193. Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases:

(c)     if the property involved in the appeal exceeds in value ten thousand dollars;

(e)     in any other case by leave of a judge of the Court of Appeal.

There are two legal issues to be decided with respect to the appeal rights under s. 193 of the BIA. The first is whether a solicitor’s lien and a charging order is a form of property for the purpose of s. 193(c) of the BIA. The second is whether this proposed appeal meets the test for leave, assuming that it must proceed under s. 193(e). The three points to note from Justice Henry’s decision in the bankruptcy case of Re Tots and Teens and as summarized in Thomas Gold Pettingill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182 about a charging lien made under the court’s inherent jurisdiction are: first, the charging lien creates the proprietary interest of a secured creditor; second, subject to being declared, the charging lien is an inchoate interest that pre-dates the court’s declaration; and third, the charging lien is intrinsically declaratory in nature. Consistent with Re Tots and Teens, it is more than arguable that s. 193(c) is the basis for the court’s appeal jurisdiction; the appellants would not have required the court’s leave if the appeal had been brought in time. However, the Court of Appeal would have granted leave to appeal under s. 193(e) of the BIA.

The test for leave to appeal under s. 193(e) of the BIA was set by this court in Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Co., 2012 ONCA 569:

  1. whether the point of appeal is of significance to the practice;
  2. whether the point raised is of significance to the action itself;
  3. whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and
  4. whether the appeal will unduly hinder the progress of the action.

The question is whether the appeal raises an issue or issues of general importance to the practice in bankruptcy/insolvency matters and to the action itself, and whether the appeal is prima faciemeritorious. The proposed appeal is not in any sense frivolous, and  it is of significance both to the parties and in respect of the proceeding. It would be helpful to the practice to identify the circumstances in which a salvage lien is properly obtained and the discretionary factors that would lead a court to deny a salvage lien.  Also, it is arguable that the application judge did not set out a principled basis for refusing to grant a charging order in favour of the solicitors, having found a valid solicitor’s lien. The solicitors were working with the bankrupt to assist him and decided not take a second mortgage securing their legal fees. It is not clear why this should prejudice them when, had they taken out the second mortgage, the amount of money represented thereby would not have fallen into the estate. The Court took a similar view of his refusal to grant a salvage lien to Menziesbank. The application judge simply asserted that he was applying the equities but he did not explain his thinking in any meaningful way. All four criteria were satisfied.

790668 Ontario Inc. v D’Andrea Management Inc., 2015 ONCA 557

[MacFarland, Lauwers and Huscroft JJ.A.]

Counsel:

J. B. Laskin, for the appellant D’Andrea Management Inc.

E. Babin, for the appellants Daney D’Andrea and 1317539 Ontario Inc.

J. H. McNair and M. J. Butkus, for the respondents Siskind Cromarty Ivey Dowler LLP and Fausto Boniferro.

Keywords: Summary Judgment, Hyrniak

Facts:

The minority shareholders of D’Andrea Management Inc. (DMI) have been engaged in litigation with DMI and D’Andrea over the assets of DMI since 2000. The facts are long and complex and therefore are not laid out in this judgment.  DMI appeals from the motion judge’s decision granting summary judgment to the respondents and dismissing the third party claim against them.  The appellants also seek leave to appeal the associated costs order.

Issues:

  1. Did the motion judge err in failing to find that the pleading alleged conspiracy against the respondents?
  2. Did the motion judge fail to take an appropriately holistic view of the action in dismissing the third party claim against the respondents, and fail to give effect to the principles laid down inHryniak?

Holding:

Main appeal dismissed. Costs appeal allowed in part.  Costs award reduced by one-third.

Reasoning:

  1. The pleadings do not allege conspiracy. The judge’s conclusions are not unreasonable as they flow from the text of the pleading and from the history of the litigation.
  2. The motion judge concluded that Boniferro, in his role as a lawyer, did not owe a fiduciary duty to the responding parties and there was no evidence that they otherwise conferred authority on him. Similarly, any privilege belonged with Boniferro’s clients and not the appellants. The motion judge’s finding that Boniferro and Siskinds were at all times acting as counsel to their clients and that they did nothing actionable from the perspective of the appellants was well-explained and fully supported by the evidence she reviewed. She is owed deference, thus the Court declined to interfere.

Abuzour v. Heydary, 2015 ONCA 565

[Laskin, Pardu and Brown JJ.A.]

Counsel:

B. N. Radnoff and L. F. Moher, for the appellants.

A. Zweig, for the respondents.

Keywords: Insurance Law, Liability Insurance Policy, Garnishment, Enforcement of Garnishment Order, Setting Aside or Varying Garnishment Order

Facts:

Javad Heydary appears to have disappeared with his clients’ money. Heydary’s firm, Heydary Hamilton Professional Corporation, owed the Abuzours (the respondents) more than $3.6M. Heydary and Heydary Hamilton’s LawPro liability insurance policy limits are only $1M. The appellants are lawyers formerly employed by Heydary Hamilton. The appellants had no control over the trust account and played no part in the disappearance of the funds, but the respondents have threatened to sue them. By way of background, a dispute arose about whether the Abuzours were entitled to money deposited to Heydary’s trust account in settlement of an oppression action with a third party.  The respondents did not obtain a judgment against Heydary Hamilton or Javad Heydary for negligence, fraud, error or omission in the provision of professional services, matters covered by the insurance policy. Rather, the Abuzours brought motions in the   oppression proceeding which resulted in two orders for payment of $3.6M from the Heydary Hamilton trust account to the Abuzours. Heydary Hamilton did not comply and were found in contempt of court. The Abuzours then served a notice of  garnishment  on  LawPro and brought a successful motion to enforce the garnishment. It is the failure to comply with the contempt orders which arguably gives rise to an insured loss.  The appellants want to resort to the liability insurance policy for their defence costs and if policy limits are paid out, the appellants will be left without coverage to defend themselves against a potential lawsuit by the respondents. The appellants brought a motion to set aside or vary the garnishment order.  They appeal from the motion judge’s refusal to set aside or vary  the order.

Issue:

Should the garnishment order should be set aside?

Holding:

Appeal allowed to the extent of varying the order of the motion judge. Costs to the appellants in the agreed sum of $10,000, inclusive of disbursements and taxes. Cross-appeal dismissed with costs to the appellants fixed at $1,500 all inclusive.

Reasoning:

A decision on whether to enforce a garnishment is discretionary. Most significantly for the purposes of the appeal, the respondents were unable to articulate any basis upon which they might advance a claim against the appellants relating to the money which has vanished.  Therefore, contrary to the decision of the motion judge, the appellants should provide a release to the appellants narrowly tailored to the apparent theft of the trust funds as a condition of the payment to them of the garnished insurance policy limits.

Richter LLP v. Big Truck TV Productions Inc., 2015 ONCA 567

[Feldman, van Rensburg and Huscroft JJ.A.]

Counsel:

B. D. Duxbury and A. D. Pelletier, for the appellant.

J. Charland, for the respondent.

Keywords: Garnishment Hearings, Debtors and Creditors, Garnishable Debts, Irrevocable Directions,  Priority of Creditors, Rules of Civil ProcedureTaxation Act, Corporations Tax Act, Personal Property Security Act, Costs.

Facts:

As a digital media company, Big Truck TV Productions Inc. (the “Debtor” and “Big Truck ”) was eligible for a tax credit under the Ontario Interactive Digital Media Tax Credit Program. CTAP Inc. prepared the tax credit application for Big Truck for 2010, but when Big Truck was unable to pay CTAP’s fees, CTAP sued. Inch Hammond Professional Corporation (the “Appellant” and “Inch Hammond”) acted for Big Truck and negotiated a settlement of the litigation, but neither the settlement amount nor Inch Hammond’s legal fees were paid.

R&D Funding Management Inc. (“R&D”) prepared Big Truck’s 2011 tax refund application. In anticipation of Big Truck receiving a tax refund cheque, a new settlement agreement with Big Truck was negotiated with CTAP, whereby the tax refund cheque would be directed to be paid to Inch Hammond to pay the three creditors – CTAP, Inch Hammond and R&D – with the balance to be paid to Big Truck. The anticipated tax refund was believed to be sufficient to pay all three creditors with some left over for Big Truck.

Inch Hammond prepared an Irrevocable Direction to reflect those terms. Big Truck executed the Irrevocable Direction after making an amendment that replaced the third creditor, “R&D Funding”, with “Richter” (the “Respondent”). In his affidavit, Mr. Hammond deposed that when he later saw Richter’s statement of claim, he inferred that at some point R&D’s contract with Big Truck had been assigned to Richter.

Big Truck also sent an Irrevocable Direction to the Canada Revenue Agency (“CRA”), directing the CRA to make the refund cheque payable to Inch Hammond in Trust. In July 2013, Richter obtained default judgment against Big Truck, and in October, issued a Notice of Garnishment to Inch Hammond in respect of the anticipated refund cheque from the CRA. It was only at that point that Inch Hammond reviewed the signed Irrevocable Direction it had received in April and found that Richter was named as the #3 payee. Inch Hammond responded in November to the Notice of Garnishment with a Garnishee’s Statement, and corresponded with counsel for Richter. In the Garnishee’s Statement, Inch Hammond asserted that it did not owe a debt to Big Truck, but rather it was a trustee and a creditor of Big Truck. It also asserted that because Inch Hammond had been directed to pay other creditors before paying Richter, Inch Hammond required clarification and possibly a court order to determine whether it was required to pay Richter pursuant to the Notice of Garnishment.

The refund cheque was not issued by the CRA until December. While it was sent to Inch Hammond as directed, contrary to Big Truck’s direction it was made out to Big Truck and not to Inch Hammond in Trust and it was also for a lesser amount than anticipated.  Big Truck endorsed the cheque to Inch Hammond in February 2014.  Inch Hammond then paid CTAP and itself in full,   and because it had received a Notice of Garnishment, it paid the remaining balance not directly to Richter but to the Sheriff.

Richter then initiated a garnishment hearing motion, seeking payment from Inch Hammond of the amount it was owed as set out in the Notice of Garnishment. The motion judge found that the Notice of Garnishment put Inch Hammond on notice that “there was a dispute about the funds, and that a court would have to decide the rights and liabilities of each party.”

The motion judge found that Inch Hammond should have followed the garnishment procedure or paid the money into court, but should not have used self-help and should not have paid itself. The motion judge found that Inch Hammond had “not come to the court with clean hands.” He ordered Inch Hammond to pay $89,608.19 to the Sheriff, being the amount owing as set out in the Notice of Garnishment, plus costs to Richter.

Issue:

Was Inch Hammond obliged to treat the refund cheque from the CRA to Big Truck as a garnishable debt it owed to Big Truck?

Held:

Appeal allowed. The order made by the motion judge is set aside. Costs fixed in the agreed amount of $10,000, inclusive of disbursements and HST.

Reasoning:

No. The fundamental premise of the garnishment process is that a creditor who obtains an order for a debtor to pay money may enforce that order by garnishing debts payable by other persons to the debtor. Before the motion judge, Inch Hammond argued that it was not a debtor of Big Truck, but rather it was a creditor.

The tax refund represented monies owed by the CRA to Big Truck, which Big Truck directed to be paid first to its legal counsel in trust and then to three of its creditors for the amounts owed to them (except to the extent of any available excess) in accordance with the Irrevocable Directions to the CRA and to Inch Hammond.

After Big Truck executed the Irrevocable Direction, the only duty Inch Hammond owed to Big Truck was to carry out its terms. Once the amount of the cheque was known, it was clear that no balance of funds would remain and therefore no debt to Big Truck would arise.

The rights of the parties in the garnishment hearing depended on whether there was a garnishable debt owed by Inch Hammond to Big Truck. In the absence of such a debt, Richter had no claim under rule 60.08 the Rules of Civil Procedure, to the funds that had been disbursed by Inch Hammond.

The Court also noted that Inch Hammond did not act in an improper manner or with unclean hands in all the circumstances.

Maple Leaf Foods Inc. v. Ryanview Farms, 2015 ONCA 566

[Simmons, Tulloch and Pardu JJ.A.]

Counsel:

M. Cook, for the appellants.

J. Mouland, for the respondent.

Keywords: Damages, Implied Warranty, Agriculture, Diseases Animals, Sale of Goods Act

Facts:

The appellant entered into a contract to supply piglets (“SEWs”) based on the prevailing Hog Forward Contract Price. The appellants purchased breeding pigs (gilts) and boars from the respondent because the respondent represented that their gilts would produce healthy SEWs. Due to transport issues, the delivered pigs were stressed upon arrival and contracted a respiratory virus. In response, the parties agreed that the respondent would supply free replacement pigs. The appellants and the respondent disagreed over the terms on which the replacement animals were delivered; some but not all of the animals were delivered.  The respondent delivered invoices, which the appellants did not pay. The respondent sued the appellants for the balance owing on the sale of animals. The appellants counterclaimed for damages arising from loss of production due to the unsatisfactory quality of the gilts delivered.

The trial judge concluded that the appellant owed the balance for the delivered pigs, which was $16,503.71. The trial judge also found that the sale of the animals from the respondent to the appellants was subject to an implied warranty of fitness under the Sale of Goods Act. Given the number of diseased animals supplied, the respondent had breached the implied warranty.

Issues:

  1. Did the trial judge err in assessing damages regarding the appellants’ counterclaim?
  2. Did the trial judge err in failing to account for the shortfall of replacement animals provided by the respondent?
  3. Did the trial judge err in finding an implied warranty under the Sale of Goods Act?

Holding:

New trial ordered on the issue of damages and the issue of the number of replacement pigs.

Reasoning:

  1. The trial judge erred in his approach to the assessment of damages. Instead of relying upon data from a “PigCHAMP” database, which had been used by all experts who had testified, the trial judge relied upon records from the Canadian Agricultural Income Stabilization (“CAIS”). On appeal, counsel for the respondent was unable to explain on what basis the trial judge arrived at certain conclusions using the CAIS records. The trial judge failed to resolve the differences in the assumptions made by experts for the appellants and the respondent.
  2. The Court found that the trial judge erred by failing to account for the number of free replacement animals the respondent agreed to provide and how any shortfall should factor into a calculation of the balance owed by the appellants to the respondent.
  3. The Court found no error in the factual findings or legal conclusions drawn by the trial judge in establishing the respondent’s liability for breach of implied warranty.

Whiteman v. Iamkhong, 2015 ONCA 564

[Laskin, Pardu and Brown JJ.A.]

Counsel:

T. Rodocker and J. Giuliana, for the appellant.

M. Stefanovic and K. Wilding, for the respondent The Attorney General of Canada.

A. Fox, for the respondent Zanzibar Tavern Inc.

C. Hubbard and C. Piovesan, for the respondent Dr. Martin Taylor .

Keywords: New Issues on Appeal, Summary Judgment, Sponsorship Undertaking, Permanent Resident status, HIV status, Limitations Act, ss.4, 5, 10 and 16(1)(h), Kaiman v. Graham

Facts: 

The appellant  appeals from the summary judgment granted by  C. Brown J. dismissing his action against the respondents.  The appellant’s action was based, at least in part, on an allegation that his sponsorship undertaking to the government of Canada, or the decision to grant his wife permanent resident status contributed to his becoming HIV positive.  The motions judge concluded that his action against the respondents was statute-barred by reason of ss.4 and 5 and the Limitations Act.

Issues: 

  1. Is it appropriate to allow the appellant to raise a new argument, on appeal, alleging that ss.10 and 16(1)(h) of the Limitations Act prevent his claim from being statute-barred?
  2. Is there a causal link between the appellant’s undertaking or the federal government’s decision to grant his wife permanent resident status and the appellant’s infection with HIV?

Holding:

Appeal dismissed. Costs have not been resolved between counsel. Any respondent who seeks costs against the appellant shall deliver a bill of costs and brief cost submissions no later than August 28, 2015, and the appellant shall deliver responding cost submissions no later than September 11, 2015.

Reasoning: 

  1. As stated by this court in Kaiman v. Graham, 2009 ONCA 77, “the general rule is that appellate courts will not entertain entirely new issues on appeal.”  The appellant’s argument related to s.10 of the Limitations Act is foreclosed by the motion judge’s finding that he had sufficient facts upon which to base a claim by March 2004, or at the latest, July 12, 2004.   It would be contrary to the interests of justice to entertain the appellant’s argument related to s.16 of the Limitations Actfor the first time on appeal. The possible application of s.16(1)(h) would require a consideration of evidence, and we are not satisfied that all the facts necessary to address these points are before this court as fully as if the issue had been raised on the summary judgment motion.  Further, there is no suggestion that the evidence relevant to these points only became known to the appellant after the summary judgment motion had been decided.
  2. Expert evidence on the causal connection between the actions of the federal government and the appellant’s HIV status is essential.  There was no evidence led by the plaintiff that established that but for the actions of the federal government, he would not have become HIV positive.

Holman v. Holman, 2015 ONCA 552

[Hoy A.C.J.O., Simmons and Tulloch JJ.A.]

Counsel:

F. M. Wood and M. Kurz, for the appellant.

E. H. and J. K. Heersche, for the respondent.

Keywords:  Child Support Payment Calculation, Spousal Support Payment Calculation, Divorce ActFederal Child Support Guidelines, Spousal Support Advisory Guidelines,  Standard of Review,Hickey v. Hickey, Material Change in Circumstances

Facts:

Following a 19-year marriage, Ms. Holman (Appellant) and Mr. Holman (Respondent) divorced. They had two children of the marriage, both now adults. After the marriage ended, Mr. Holman paid child and spousal support and, when the time came, contributed to the girls’ post-secondary education.

In 2012, Mr. Holman brought a motion to change his support obligations, seeking a termination of child and spousal support. In response, Ms. Holman sought an increase in child and spousal support based on increases to Mr. Holman’s income since the most recent order. The motion judge terminated child support and found that Mr. Holman had overpaid child support. He terminated spousal support as of November 15, 2013 but found that Mr. Holman had underpaid spousal support. He calculated that the net amount owed by Ms. Holman to Mr. Holman was $40,287.

Ms. Holman appeals. She argues the motion judge made a number of calculation errors with respect to child support, should have increased spousal support after terminating child support, and erred in terminating spousal support.

Issues:

  1. Did the motion judge err by concluding that  there was a material change in Mr. Holman’s financial circumstances justifying the termination of the existing spousal support order?
  2. Did the motion judge err by determining that Ms. Holman had achieved self-sufficiency 11.5 years after separation, which is the correct date to terminate the spousal support order?
  3. Did the motions judge err by failing to increase spousal support after Mr. Holman’s child support obligations ceased?
  4. Did the motion judge err by failing to adjust child support after Mr. Holman’s income increased?
  5. Did the motion judge err by awarding Mr. Holman a $12,000 credit based on the finding that the Holman’s adult child (“K”) should have contributed  to her own education and living expenses?
  6. Did the motion judge err by calculating that Mr. Holman was entitled to be reimbursed 50 percent of the total amount between January 1, 2012 and April 30, 2013, based on the finding that Mr. Holman had paid child support for two children while only one was residing with Ms. Holman?
  7. Did the motion judge err by deducting from the spousal support underpayment?
  8. Did the motion judge err by terminating child support for K, while she was in university, effective May rather than June?

Held:

Appeal allowed in part. Paragraph 4 of the November 22, 2013 order will be deleted and replaced with the following: Ms. Holman shall pay Mr. Holman $36,646 on account of child support which Mr. Holman overpaid. Mr. Holman shall pay Ms. Holman $11,204 on account of spousal support which he underpaid.

Reasoning:

  1. No. The threshold question on a motion to change a spousal support order is contained in s. 17(4.1) of the Divorce Act. It would have been preferable for the motion judge to explicitly address the threshold question of material change in the circumstances before considering the request to terminate the existing indefinite spousal support order. However, his failure to do so was not unreasonable in the circumstances and does not give rise to the level of error that is required by the material change test set out in Hickey v. Hickey.
  2. No. The motion judge explicitly referred to and considered the objectives required by theDivorce Act. The motion judge was alive to and considered the compensatory nature of Ms. Holman’s claim. He was aware of the economic disadvantages Ms. Holman suffered as a result of the family decision to have her stay home and care for the children. He was aware that corresponding economic advantages were conferred on Mr. Holman. The alleged overemphasis on the goal of self-sufficiency while underemphasizing the compensatory nature of the claim amounts to a criticism of the motion judge’s balancing of factors rather than to an error in principle.
  3. Yes. The Spousal Support Advisory Guidelines (the “SSAGs”) specify at ss. 8.11 and 14.5 that a so-called “crossover” to the without child formula is appropriate after child support obligations cease. Given that Ms. Holman’s spousal support was ordered to be terminated at 11.5 years, which is on the low end of the durational range set by the SSAGs for a 19-year marriage with a strong compensatory element, and given the interrelation of duration and amount, Ms. Holman should be awarded an amount at the high end of the range for this period.
  4. Yes. The 2009 and 2010 orders provide that the parties were to exchange financial information by May 15 of each year and adjust support payments effective June 1, if necessary. The motion judge gave no reasons for failing to adjust child support as provided for in these orders and should, in calculating any overpayment, have respected the terms agreed to by the parties.
  5. Yes. Mr. Holman is not entitled to the full $12,000 credit. Any contribution by K should reduce the portion of her expenses paid by both parents. Accordingly, the court adopts the agreement of the parties, and credits $8,000 to Mr. Holman.
  6. Yes. The Federal Child Support Guidelines (the “CSGs”) are clear that the amount of child support for one child is not equal to half the amount of child support for two children. This section provides that if the court considers the table amount of support to be inappropriate for a child over the age of majority, the court may order the amount of support “that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” When making these adjustments, the motion judge did not provide any rationale for such a departure. The only reference by the motion judge to a departure from the CSGs was on the separate issue of whether Mr. Holman was required to pay child support following his children’s first degrees.
  7. Yes. The motion judge deducted $3,630 in child support overpayments from the $5,620 that Mr. Holman underpaid in spousal support. This deduction was unwarranted and amounted to double-counting in Mr. Holman’s favour, as the motion judge had already fully accounted for child support overpayments.
  8. No. Ms. Holman brought no evidence regarding the date the child completed her studies. It is not apparent that the parties had agreed that support would terminate effective June 1, 2013. There is no reason to interfere with the motion judge’s decision to terminate child support effective May 1, 2013.

Criminal Law Decisions

R. v. A.A., 2015 ONCA 558

[Watt, van Rensburg and Pardu JJ.A.]

Counsel:

M. Stephens, for the appellant/respondent by way of cross-appeal.

J. D. Harbic and R. Harbic, for the respondent/appellant by way of cross-appeal.

Keywords: Criminal Law, Trafficking, Question of Law, Statutory Interpretation, Criminal Code, s. 279.04, s. 279.011(1), Exploitation, Safety, Objective Factors

Living on the Avails of Prostitution, Criminal Code, s. 212(2), s. 212(3), Single Act of Prostitution

Assault With a Weapon, Assault, Assessment of Defendant’s Credibility and Reliability, Demeanor, Deference, Unreasonable Convictions, R. v. Biniaris

R. v. Abdullahi, 2015 ONCA 549

[Doherty, Gillese and Brown JJ.A.]

Counsel:

C. Rippell, for the appellant.

R. Shallow, for the respondent.

Keywords: Criminal Law, Possession of a Firearm, Misapprehension of the Evidence, Accused’s Credibility, R. v. M.M.C., Burden of Proof, R. v. A.P., Credit for Presentence Custody, R. v. Summers, Concurrent Sentence, Criminal Code, s. 92(1) and 95(1)

R. v. M.K., 2015 ONCA 563

[Doherty, Gillese and Brown JJ.A.]

Counsel:

R. Litkowski, for the appellant.

J. Gorda, for the respondent.

Keywords: Criminal Law, Sexual Assault, Misapprehension of Evidence, Credibility and Reliability of Evidence

R. v. Semple, 2015 ONCA 562

[Doherty, Gillese and Brown JJ.A.]

Counsel

R. Posner, for the appellant.

J. Patton, for the respondent.

Keywords: Endorsement, Criminal Law, Miscarriage of Justice, Crown Closing, R. v. Luciano

R. v. Quesnelle, 2015 ONCA 554

[Doherty, Gillese and Brown JJ.A.]

Counsel:

M. C. Halfyard and B. Vandebeek, for the appellant.

K. Rawluk, for the respondent.

Keywords: Endorsement, Criminal Law, Misapprehension of Evidence, Criminal Code, “Young Person”

R. v. Hossenmamode, 2015 ONCA 555

[Doherty, Gillese and Brown JJ.A.]

Counsel:

P. Calarco, for the appellant.

H. Freeman, for the respondent.

Keywords: Endorsement, Criminal Law, Motion to Quash,  Charter of Rights and Freedoms, s. 11(b), Prejudice

R. v. Collins, 2015 ONCA 561

[Doherty, Gillese and Brown JJ.A.]

Counsel:

M. Dineen, for the appellant.

M. Medeiros, for the respondent.

Keywords: Endorsement, Criminal Law, Sexual Assault, Chronology of Events

R. v. Ho, 2015 ONCA 559

[Doherty, Gillese and Brown JJ.A.]

Counsel:

P. Lindsay and M. Mohamed, for the applicant (appellant).

J. Patton, for the respondent.

Keywords: Endorsement, Criminal Law, Summary Conviction Appeal Court, Reasonable Belief

R. v. Bennett, 2015 ONCA 556

[Doherty, Gillese and Brown JJ.A.]

Counsel:

I. Carter, for the appellant.

J. Neander, for the respondent.

Keywords: Endorsement, Criminal Law, Misapprehension of Evidence, Detailed Reasons

R. v. Baks, 2015 ONCA 560

[Doherty, Gillese and Brown JJ.A.]

Counsel:

C. Suter, for the appellant.

F. A. Alibhai, for the respondent.

Keywords: Endorsement, Criminal Law, Drug Trafficking, Forgery, Stay of Conviction, Kienappleprinciple, Appealing of a Sentence, “Manifestly Unfit”, Sentence, Mitigating Factors