Year: 2011

Justice Brownstone of the Ontario Court of Justice recently wrote on the state of law on joint custody in Ontario.  In the case of Hsiung v. Tsioutsioulas, Justice Brownstone wrote:

[17]                  I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way…..  However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable…  Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship… consider this to be such a case.

The Elgners separated in 2007 after 33 years of marriage.  Their children were grown.  They were successful and  had accumulated a lot of assets over their marriage.

The former couple gained notoriety in 2009 when Justice Greer made the highest temporary spousal support order in Ontario.  The Court ordered the husband to pay the wife $110,000 per month, plus retroactive spousal support of $3,360,000 for the two years preceding the order.  That’s a lot of money.

Since the temporary support order of Greer, the husband has lost 3 separate appeals stemming from the same order. The procedural issues in the husband’s appeals have taken on their own life. The husband has argued that he has an automatic right under Canada’s Divorce Act to appeal any support order, temporary or final, made under the authority of that Act.  The husband pursued that argument despite the prevailing judicial authority in Ontario, that the appeal of temporary orders (whether made under the federal Divorce Act or the provincial Family Law Act) required leave from the Divisional Court.  The test for leave is an issue of public importancerounded on either the principle of public importance or conflicting decisions.

A single judge of the Divisional Court refused the husband’s first appeal because he failed to establish that th importance of the appeal was a public one that transcended the issues between the parties.  was a dismissed because he failed to obtain leave to appeal a temporary order.  He was unable to pursued the appeal court that the matter of the appear went beyond the parties’ immediate interests, an Despite well established case law that interi

He first appealed to single judge of the


In Gagne v. Gagne, the Court of Appeal set aside the trial judge’s decision and made its own child and spousal support order after finding that the trial judge had failed to determine the support payor’s income.  As a result there was no basis in his decision for the amounts ordered.

The Court of Appeal found that the husband had not made “fair disclosure” in the lower court.  Nonetheless, the trial  record showed  that the husband disclosed an average annual income of $230,000.00 over a 5 year period. The Court of Appeal upheld the trial judge’s finding that the husband failed to disclose income from other sources and imputed an additional $20,000.00 to him, increasing his income to $250,000.00.

The Spousal Support Guidelines (“SSAGs”) produced the following range of monthly spousal support: Low – $3349; Mid – $3968; and High – $4597 (based on the “with child formula”, the length of the parties’ marriage, their ages and incomes).  The Court of Appeal ordered the husband to pay the higher range figure because of his failure to make fair disclosure.

Unfortunately, there is nothing in the SSAGs to suggest that the ranges are to be used to penalize a party for financial disclosure that is not fair.  The SSAGs state in chapter 4:

The Advisory Guidelines do not generate a fixed figure for either amount or duration, but instead produce a range of outcomes that provide a starting point for negotiation or adjudication.

Ranges create scope for more individualized decision-making, allowing for argument about where a particular case should fall within the range in light of the Divorce Act’s multiple support objectives and factors. Ranges can also accommodate some of the variations in current practice, including local variations in spousal support cultures.

And at Chapter 8:

The ranges allow the parties and their counsel, or a court, to adjust amount and duration to accommodate the specifics of the individual case in light of the support factors and objectives found in the Divorce Act

It would have been nice to see an appellate case where the Court was more instructive on the use of the ranges.  Maybe some other time.


There has been a lot of discussion lately about paying child support to adult children who are estranged from the support payor.   Should a father pay support to a child who is attending university, and who refuses to have a relationship with the support payor?  Are adult children required to communicate a minimum disclosure regarding their studies?

Smith v. Smith addresses the issue of support for adult children in circumstances where the children cut off their relationship with the support payor.  Without much analysis, the court simply terminated the children’s support.

A more thorough discussion of the topic can be found in Caterini v. Zaccaria, where Justice Pazaratz quoted a paper delivered by Justice Corbett, and the following comments as authority:

    (a) Contrary to certain recent literature, there has not been “growing judicial recognition” that the quality of the relationship should have a bearing on child support.
    (b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent.
    (c) The statutory basis for taking the quality of the child-parent relationship into account is dubious.
    (d) There is appellant authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest.
    (e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision.
    (f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent.

As has been commented by others, a review of case law in the area suggests that the over riding concern on the part of courts is the child’s need.  If the child needs the support, the weight given to the quality of his or her relationship with the payor spouse is less important.  If the support is not needed the quality of the parent child relationship is given more importance.


The nature of a custody application and an adoption placement are very different.  A child’s custody is always open for a court to review based on the child’s best interests.  An adoption order, once made, is final and non-variable.

In Ontario, a parent or “any other person” can make an application for custody or access to a child.  However, if a child has been placed for adoption, section 143(2) the CFSA prohibits anyone from “interfering” with the child (i.e., including a custody application).

In the particular facts of  K.D.S. v. K.M.S., Justice Nelson of the Superior Court suspended a grandfather’s custody application on the basis that the court was without jurisdiction to entertain it because the child had been placed for adoption.

However, the court made that ruling despite the fact that the grandfather’s application for custody was issued before the child’s placement for adoption. So, how can the grandfather’s custody application “interfere” with an adoption process that has not started?

That part of the decision is difficult to understand given the wording of section 143(2) the CFSA, which prohibits interference with the adoption process after a licensee or agency has placed the child for adoption. The Act does not say that the adoption process starts with a mother’s decision to pursue the adoption route.

Nonetheless, on the basis that the adoption process begins when the mother decided that she was going to place her unborn child for adoption, the court found that the grandfather’s custody application was prohibited because it “interfered” with the adoption process.

The court found that biological father’s lack of consent to the adoption was of no consequence, and did not impeach the placement for adoption.

In a highly technical discussion, the court found that the biological father failed to meet the statutory definition of “parent” under section 137 of Ontario’s Child and Family Services Act (CFSA) and section 8 of the Children’s Law Reform Act (CLRA).

In the particular facts of the KDS case, the Court found:

“Neither the father, the grandfather, nor the grandfather’s 32 immediate family members satisfied any of the conditions in section 137(1) of the CFSA.  None of them is an individual under section 8(1) of the CLRA.  None of them has acknowledged parentage of the child in writing under section 12 of the CLRA.  None of them is, under written agreement or court order, required to provide for the child, has custody of the child or a right of access to the child.  None of them has lawful custody of the child.  “Lawful custody” has been interpreted to mean the actual exercise of custody, as opposed to the entitlement to the exercise of custody: …  In this case, the point is moot as no custody or temporary custody order has been granted.

With respect to section 137(1)(d) of the CFSA, none of them has acknowledged parentage of the child and provided for the child’s support;

Further, neither the father nor the grandfather has, during the twelve months before the child was placed for adoption under Part VII of the CFSA, demonstrated a settled intention to treat the child as a child of his or her family.”

In the latter case, the court relied on case authority to find that treating a child as a child of one’s family meant “immediate family” instead of the “extended family” of a grandparent.

The case is a difficult one to grapple with: essentially the court says that the child’s best interests are served by not interfering with an adoption process that was started after the grandfather’s custody application, and when opposed by a biological father.

In today’s world, it is not unusual for children to be conceived after short relationships and even “hook ups”.  Perhaps it is time for the legislature to consider expanding the definition of parent to include a biological father whose identity is known to the mother.