D. Smith

This document is a summary note regarding the Supreme Court of Canada's decision in Contino v. Leonelli-Contino.

The Supreme Court allowed the appeal from the Court of Appeal for Ontario, establishing that a party seeking to deviate from the Federal Child Support Guidelines under the shared custody provisions of section 9 must establish on clear and compelling evidence that the deviation is in the child's best interests, and the court must consider all statutory factors without giving pre-eminence to any single factor.

The appellant appealed a decision reducing her spousal support from $1,200 to $400 per month.

The respondent had applied to terminate support after discovering the appellant was in a new common-law relationship and receiving financial support from her new partner.

The application judge found a material change in circumstances and reduced support due to the appellant's lack of effort to become self-sufficient.

The Court of Appeal dismissed the appeal, finding no error in the application judge's assessment of the appellant's efforts or the quantum of support, emphasizing the deference owed to trial judges in family law matters.

The parties executed a separation agreement containing an explicit release of spousal support and a provision for recalculating child support if the husband's income materially increased.

Years later, the wife sought spousal support after the husband's income increased significantly.

The trial judge implied a term requiring the husband to disclose income increases, linked it to the spousal support release, and awarded retroactive and future spousal support.

The Court of Appeal allowed the husband's appeal, holding that a term cannot be implied if it contradicts an express term of the agreement.

The implied obligation to disclose income for spousal support purposes contradicted the express release of spousal support.

The wife brought a motion to dismiss her husband's appeal of a divorce judgment on the basis that he had failed to pay monthly spousal support since the appeal was heard.

The husband argued his income had declined and his capacity to pay had eroded.

The Court of Appeal dismissed the motion without costs, noting that there were important issues to be decided in the appeal and that the court was releasing its judgment on the main appeal concurrently.

The mother appealed a trial decision awarding joint custody of the parties' young child and ordering the parents to attend counseling, with an unnamed counselor to resolve disputes.

The father cross-appealed the net family property equalization payment.

The Court of Appeal allowed the mother's appeal, finding the trial judge erred in awarding joint custody given the parents' complete inability to communicate and lack of historical cooperation.

The court also held the trial judge exceeded her jurisdiction by ordering counseling and delegating decision-making to a counselor.

Sole custody was awarded to the mother, and a new trial was ordered for access.

The father's cross-appeal regarding property was dismissed.

The appellant sought to set aside a 1996 settlement agreement based on the respondent's fraud in order to pursue claims for spousal support and equalization.

The trial judge refused to grant rescission, finding that the appellant suffered no loss, that it would be difficult to restore the parties to their pre-1996 positions, and that the claims were barred by res judicata and issue estoppel.

The Court of Appeal upheld the trial judge's exercise of discretion and dismissed the appeal.

Following a successful appeal regarding the jurisdiction to order the conveyance of a cottage property, the appellant sought costs on a substantial indemnity basis due to the respondent's ill-advised interlocutory steps.

The Court of Appeal declined to award substantial indemnity costs, noting the litigation stemmed from the respondent's attempts to secure child support arrears evaded by the other respondent.

Applying the factors from Andrews v. Andrews, the court awarded the appellant modest costs of $3,000.

The appellant was successful on appeal in setting aside an order to convey a cottage property to the respondent.

All parties sought costs.

The court declined to award substantial indemnity costs to the appellant despite the respondent's ill-advised interlocutory steps, noting the litigation stemmed from the other respondent's evasion of child support and breach of the Family Law Act.

The court awarded modest costs of $3,000 to the appellant.

The appellant appealed an order requiring her to convey a cottage property to the respondent, Diane Pirner.

The cottage had previously been transferred by the respondent's former husband to a family trust, and then to the appellant.

The application judge ordered the transfer to satisfy security for support and equalization payments.

The Court of Appeal held that the application judge lacked jurisdiction under the Family Law Act to order the appellant to convey the property to the respondent, as the original conveyance was voidable, not void, and the appellant was not a straw person.

The appeal was allowed and the order set aside.

The father applied to reduce his child support obligations under s. 9 of the Federal Child Support Guidelines because the child was in his physical custody 50 per cent of the time.

The motion judge applied a strict formulaic set-off approach.

The Divisional Court allowed the mother's appeal, holding that the father had to adduce clear and convincing evidence to rebut the presumption that the Table amount was in the child's best interests.

The Court of Appeal allowed the father's appeal, holding that the Divisional Court erred in applying a presumption in favour of the Table amount to s. 9 cases.

The Court of Appeal also held that the motion judge erred in applying a strict formulaic approach, and instead set out a discretionary framework that considers the Table amounts, the increased costs of shared custody, and the conditions, means, needs, and other circumstances of each spouse and the child.

The father applied to reduce his child support obligation because his son was spending 50 per cent of the time with him.

The motion judge reduced the support from over $550 to $100 using a strict formulaic set-off approach.

The Divisional Court overturned this, ordering the Table amount of $688, holding there is a presumption in favour of the Table amount under s. 9 of the Federal Child Support Guidelines.

The Court of Appeal allowed the father's appeal, holding that the presumption does not apply to s. 9.

The Court set out a structured discretionary approach to s. 9, starting with a simple set-off, applying a multiplier to reflect fixed costs, and adjusting for actual spending patterns.

The father was ordered to pay $399.61 monthly.

The father brought a motion to stay an interim order that allowed the mother to relocate with their two children to Sweden pending a trial scheduled for December.

The court considered the tests for both a stay and leave to appeal, emphasizing that the best interests of the children and continuity of care were paramount.

Finding no grave prejudice or irreparable harm to the father, and noting the assessor's recommendation that the children remain in the mother's primary care, the court dismissed the motion for a stay and awarded costs to the mother.

The father applied to reduce his child support obligations, claiming the child was in his custody for at least 40 percent of the time.

The motions judge granted the application and reduced the support retroactively, without making findings on income or analyzing the factors under section 9 of the Federal Child Support Guidelines.

The mother appealed.

The Divisional Court allowed the appeal, holding that the principles from Francis v. Baker apply to all statutory exceptions under the Guidelines, requiring a presumption in favour of the Guidelines amount and clear and compelling evidence to justify a deviation.

The original support order was restored.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.

The appellant appealed a judgment on the ground that the trial judge's intervention during the presentation of the case was so extensive that it resulted in a loss of jurisdiction.

The Court of Appeal agreed, finding that the trial judge dominated the presentation of evidence throughout the brief trial, with 101 interventions over 218 pages of transcript.

The appeal was allowed, the judgment and costs order were set aside, and a new trial was directed.

The appellant appealed a trial judgment ordering him to pay spousal and child support, make an equalization payment, and transfer property to the respondent.

The appellant argued the trial judge erred regarding the nature of the family business, alleged embezzlement by the respondent, a claim of malicious prosecution following an assault acquittal, and whether the respondent's conduct repudiated the marriage.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge's conclusions were well-supported by the evidence and that there was no basis for the appellant's claims.

The appellant appealed a judgment in a matrimonial action, seeking a new trial on the basis that his trial counsel was incompetent for failing to marshal relevant evidence.

The Court of Appeal dismissed the appeal, finding no evidence to determine whether the lack of evidence was attributable to counsel or the appellant's own failure to divulge information.

The respondent's cross-appeal regarding deductions for notional costs and tax liability was also dismissed, as the trial judge's consideration of probable tax liability was reasonable given the record.

The appellant father appealed a trial judgment awarding joint custody of the children, seeking sole custody.

The respondent mother cross-appealed the joint custody order and the equalization of net family property, but abandoned the custody cross-appeal.

The Court of Appeal found no basis to interfere with the trial judge's difficult decision to award joint custody, noting it was not forcibly opposed.

The court also found no palpable error in the trial judge's equalization determination.

Both the appeal and cross-appeal were dismissed without costs.

The appellant challenged a trial judgment arising from a matrimonial dispute involving custody and access, equalization, support, credibility findings, and costs.

He alleged unfairness, bias, evidentiary errors, and error in failing to interview the children.

The court held the appeal was an impermissible attempt to retry the case, found the allegations against the trial judge groundless, and held there was no basis to interfere with the custody determination or the costs award.

The appeal was dismissed with costs.