Bak v. Dobell, (2007) 224 O.A.C. 10 (CA)

• Jurisdiction: Ontario
• Judge: Borins, Armstrong and Lang, JJ.A.
• Neutral Citation: 2007 ONCA 304
• Citation: (2007), 224 O.A.C. 10 (CA),2007 ONCA 304,86 OR (3d) 196,281 DLR (4th) 494,38 RFL (6th) 7,[2007] CarswellOnt 2324,[2007] OJ No 1489 (QL),224 OAC 10,224 O.A.C. 10,86 O.R. (3d) 196,[2007] O.J. No 1489 (QL),(2007), 224 OAC 10 (CA),281 D.L.R. (4th) 494
• Date: 12 January 2007
• Court: Court of Appeal (Ontario)

Bak v. Dobell (2007), 224 O.A.C. 10 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. AP.102

Stephanie Bak (applicant/appellant) v. Mark Dobell (respondent/respondent in appeal)

(C44361; 2007 ONCA 304)

Indexed As: Bak v. Dobell

Ontario Court of Appeal

Borins, Armstrong and Lang, JJ.A.

April 23, 2007.

Summary:

The parties had a 13 year old daughter. A 1998 consent order provided for child support of $117 per month based on the respondent's then annual earnings of $14,500. The respondent suffered from personality disorders and had not been successful in maintaining employment. He had not earned any significant income since 2000. The appellant applied for an increase in child support to $2,300 monthly, arguing that income should be imputed to the respondent under s. 19(1) of the Child Support Guidelines based on his lifestyle and his receipt of gifts from his father. The respondent requested that child support be terminated because he earned no income.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 884, refused to impute income to the respondent and dismissed the appellant's application. The court also vacated the the consent child support order of $117 monthly. The appellant appealed.

The Ontario Court of Appeal dismissed the appeal.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties had a 13 year old daughter - The respondent suffered from personality disorders and had not been successful in maintaining employment - He had not earned any significant income since 2000 - The appellant argued that income should be imputed to the respondent under s. 19(1) of the Child Support Guidelines based on his receipt of gifts from his father, which included capital amounts and monthly support - The gifts in the nature of capital included: (1) funds advanced to finance the respondent's career training and proposed business; (2) funds used to provide the respondent with a home and a car; and (3) funds provided to the respondent to cover professional fees, such as his medical and veterinary expenses - The Ontario Court of Appeal held that the trial judge did not err in refusing to impute income to the respondent on the basis of the gifts in the nature of capital received from his father - See paragraphs 45 to 59.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties had a 13 year old daughter - The respondent suffered from personality disorders and had not been successful in maintaining employment - He had not earned any significant income since 2000 - The appellant argued that income should be imputed to the respondent under s. 19(1) of the Child Support Guidelines based on his receipt of gifts from his father, which included capital amounts and monthly support - The trial judge refused to impute income to the respondent - The Ontario Court of Appeal dismissed an appeal - With respect to the monthly support which the respondent received from his father, the court stated that "In exercising his discretion not to impute income to the respondent on the basis of the periodic support, the trial judge considered that the intended duration of the gifts was limited; that the gifts were intended only to encourage the respondent's self-sufficiency; that the gifts were made to a disabled child and were more in the nature of support for an adult child than in the nature of an allowance, and that the quantum of the gifts did no more than support a basic lifestyle. In my view, for these reasons, the trial judge was entitled to refuse to include these gifts in income" - See paragraphs 68 to 88.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Section 19(1) of the Child Support Guidelines gave a court the discretion to impute income to a payor in enumerated circumstances - The Ontario Court of Appeal stated that "the list of circumstances in s. 19(1) is not exhaustive: the legislature only provides that the list 'include' items (a) - (i). Further, there is nothing in the provision that suggests other appropriate circumstances must be analogous to those specifically enumerated, although similarity of circumstance to one listed in s. 19(1) would support the imputation of income, simply because such a circumstance would be consistent with legislative intention. The absence of analogy to a listed circumstance is simply a factor to be considered in interpreting the provision ... Some cases have held that there must be similarity between a new appropriate circumstance and the listed circumstances. However, Riel v. Holland [Ont. C.A.] makes it clear that the listed circumstances are simply examples and it is open to find new circumstances in which to impute income, provided that the new ground is consistent with the purpose of s. 19(1) and the Guidelines generally" - See paragraphs 32 to 35.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The Ontario Court of Appeal held that lifestyle was not a stand alone ground for imputing income to a payor of child support - Rather, a payor's lifestyle was evidence from which an inference could be drawn that the payor had undisclosed income that may be imputed for the purpose of determining child support under the Child Support Guidelines - See paragraphs 40 to 43.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The Ontario Court of Appeal stated that "Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1) [of the Child Support Guidelines], a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an 'appropriate circumstance' in which to impute income. In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors. Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor's entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts" - See paragraphs 74 to 75.

Cases Noticed:

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 20 R.F.L.(5th) 409 (C.A.), refd to. [para. 34, footnote 3].

Risen v. Risen (1998), 78 O.T.C. 189 (Gen. Div.), refd to. [para. 35, footnote 4].

Mascarenhas v. Mascarenhas (1999), 85 O.T.C. 287; 44 R.F.L.(4th) 131 (Gen. Div.), refd to. [para. 35, footnote 4].

Riel v. Holland (2003), 177 O.A.C. 162 (C.A.), refd to. [para. 35].

Davids v. Davids (1998), 66 O.T.C. 321 (Gen. Div.), refd to. [para. 42].

Biamonte v. Biamonte (1998), 68 O.T.C. 61; 36 R.F.L.(4th) 349 (Gen. Div.), refd to. [para. 42].

Jackson v. Jackson (1997), 46 O.T.C. 66 (Gen. Div.), refd to. [para. 53].

Scholes v. Scholes, [2003] O.T.C. Uned. 680 (Sup. Ct.), refd to. [para. 54, footnote 6].

Ellis v. Carpenter, [1999] O.T.C. Uned. 238 (Gen. Div.), refd to. [para. 55].

St. Amand v. St. Amand (2006), 298 N.B.R.(2d) 357; 775 A.P.R. 357 (Q.B. Fam. Div.), refd to. [para. 55].

M.A.K. v. K.A.B. (2000), 187 Nfld. & P.E.I.R. 224; 566 A.P.R. 224 (P.E.I.T.D.), refd to. [para. 68, footnote 9].

Ul Haq v. Ul Haq, [2003] O.T.C. Uned. 921 (Sup. Ct.), refd to. [para. 71].

Haq v. Haq - see Ul Haq v. Ul Haq.

Whelan v. O'Connor, [2006] O.T.C. 409; 28 R.F.L.(6th) 433 (Sup. Ct.), refd to. [para. 72].

C.R.H.E. v. F.G.E. (2004), 199 B.C.A.C. 269; 326 W.A.C. 269; 29 B.C.L.R.(4th) 43 (C.A.), refd to. [para. 73, footnote 10].

Fransoo v. Fransoo (2001), 204 Sask.R. 100; 14 R.F.L.(5th) 303 (Q.B. Fam. Div.), refd to. [para. 73, footnote 10].

Statutes Noticed:

Child Support Guidelines - see Family Law Act Regulations (Ont.).

Family Law Act Regulations (Ont.), Child Support Guidelines, Reg. 391/97, sect. 19(1) [para. 32].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (1st Ed. 1974), p. 67 [para. 25, footnote 1].

McLeod, James G., and Mamo, Alfred A., Annual Review of Family Law (2006), pp. 238, 239 [para. 42, footnote 5].

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2006), pp. 182, 183 [para. 42, footnote 5].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 1 [para. 25, footnote 1].

Counsel:

Robie S. Loomer, for the appellant;

Barry M. Tobin, for the respondent.

This appeal was heard on January 12, 2007, before Borins, Armstrong and Lang, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Lang, J.A., and was released on April 23, 2007.