Contino v. Leonelli-Contino, (2005) 204 O.A.C. 311 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 14, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 204 O.A.C. 311 (SCC);2005 SCC 63;EYB 2005-97372;[2005] CarswellOnt 6281;19 RFL (6th) 272;80 OR (3d) 480;JE 2005-2064;204 OAC 311;[2005] 3 SCR 217;[2005] ACS no 65;341 NR 1;[2005] SCJ No 65 (QL);259 DLR (4th) 388;143 ACWS (3d) 529

Contino v. Leonelli-Contino (2005), 204 O.A.C. 311 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] O.A.C. TBEd. NO.084

Joanne Leonelli-Contino (appellant) v. Joseph Contino (respondent)

(30100; 2005 SCC 63; 2005 CSC 63)

Indexed As: Contino v. Leonelli-Contino

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

November 10, 2005.

Summary:

A motions judge allowed a father's application to reduce child support based on the shared custody provision in the Federal Child Support Guidelines (s. 9). The mother appealed.

The Ontario Divisional Court, in a decision reported at 166 O.A.C. 172, allowed the appeal. The father appealed.

The Ontario Court of Appeal, in a decision reported at 178 O.A.C. 282, allowed the appeal. The mother appealed.

The Supreme Court of Canada, Fish, J., dissenting, allowed the appeal.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - Divorced parents entered into minutes of settlement respecting child support - Subsequently, the father applied to reduce child support based on the shared custody provision in the Federal Child Support Guidelines (s. 9) - A motions judge allowed the application and made the new order retroactive - The Ontario Court of Appeal held that the motions judge erred in making the award retroactive where, inter alia, the father had failed to pay increased child support as his income increased, as required by the minutes of settlement - The Supreme Court of Canada saw no reason to question the Court of Appeal's view that the facts did not substantiate a retroactive order - See paragraph 80.

Family Law - Topic 2419

Maintenance of wives and children - Practice - Adjournments - Section 9 of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada noted the importance of the parties leading evidence relating to ss. 9(b) and 9(c) - The court stated that "courts should demand information from the parties when it is deficient. Three main options have been discussed and applied by appellate courts: (1) Rely on the parties' financial statements and child expense budgets which provide a fairly reliable source of information; (2) Adjourn the motion to provide additional evidence ... (3) Make 'common sense' assumptions about costs incurred by the payor parent and apply a multiplier to account for the fixed costs of the recipient parent." - The court held that the third option was not acceptable - While it could be correctly assumed that there were increased costs associated with a shared custody agreement, it was not possible to simply assume the amount of that increase - See paragraphs 56 to 67.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See Family Law - Topic 2353 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - General - The Supreme Court of Canada stated that "the formula used to establish the standard Table amounts assumed that all of the expenditures for the children are met by the recipient parent and no account for any child-related expenditures is incurred by the payor parent at any level of access" - See paragraph 36.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - [See ninth Family Law - Topic 4045.7 ].

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - Section 9 of the Federal Child Support Guidelines permitted the court to deviate from the amount of child support determined under s. 3 where a spouse exercised access to, or had physical custody of, a child for at least 40% of the time (shared custody) - Section 10(1) allowed a court to award a different amount than the amount determined under, inter alia, s. 9, where "the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship" - The Supreme Court of Canada, in a case dealing with shared custody (s. 9), stated that "there is no need to resort to s. 10, either to increase or to reduce support, since the court has full discretion under s. 9(c) to consider 'other circumstances' and order the payment of any amount, above or below the Table amounts ... It is not that 'other circumstances' of each spouse and 'hardship' are equivalent terms, it is that the discretion of the court, properly exercised, should not result in hardship. It may be that s. 10 would find application in an extraordinary situation, but that is certainly not the case here." - See paragraph 72.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines permitted the court to deviate from the amount of child support determined under s. 3 where a spouse exercised access to, or had physical custody of, a child for at least 40% of the time - The Supreme Court of Canada held that there was no presumption in favour of awarding at least the Guidelines amount under s. 3 - Further, there was no presumption in favour of reducing the parent's child support obligation downward from the Guidelines amount - See paragraphs 22 to 31.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines permitted the court to deviate from the amount of child support determined under s. 3 where a spouse exercised access to, or had physical custody of, a child for at least 40% of the time - The Supreme Court of Canada stated that "The framework of s. 9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support." - See paragraph 37.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada stated that "The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case." - See paragraph 39.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada held that the simple set-off approach was preferable to the pro-rated set-off as a starting point for the s. 9 analysis - The court held that under that approach there was no assumption that the Table amount was the maximum that a parent could afford - Rather, it was the average expenditure of parents with the referable income - Further, the Table was based on the average expenditure of parents and a consideration of the parents' ability to pay - The court accepted that the set-off assumed that each parent had an equal share of variable expenses - See paragraphs 40 to 48.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada held that a simple set-off approach was the starting point for a s. 9 analysis - The Table amounts were an estimate of the amount that was notionally being paid by the non-custodial parent - Where both parents made an effective contribution, it was necessary to verify how their actual contribution compared to the Table amount that was provided for each of them when considered payor parents - The court retained discretion to modify the set-off amount where, considering the parents' financial realities, awarding that amount would result in a significant variation in the children's standard of living as they moved from one household to another - The court stated that "As far as possible, the child should not suffer a noticeable decline in his or her standard of living." - See paragraphs 49 to 51.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9(b) of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account ... (b) the increased costs of shared custody arrangements; ..." -The Supreme Court of Canada held that s. 9(b) did not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40% to more than 40% - Section 9(b) recognized that the total cost of raising children in shared custody situations might be greater than in situations where there was sole custody - The court was required to examine the budgets and actual child care expenses of each parent - These expenses would be apportioned between the parents in accordance with their respective incomes - See paragraphs 52 and 53.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9(c) of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account ... (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada noted that not every dollar spent by a parent in exercising access over the 40% threshold resulted in a dollar saved by the recipient parent - Indeed, irrespective of the residential arrangement, it was possible to presume, in the absence of evidence to the contrary, that the recipient parent's fixed costs had remained unchanged and that his or her variable costs had been reduced only modestly by the increased access - When no evidence was adduced, the court should recognize the status quo regarding the recipient parent - See paragraph 54.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9(c) of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account ... (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada stated that "The analysis should be contextual and remain focussed on the particular facts of each case. For example, an application that represents a variation of a prior support arrangement, will usually raise different considerations from a s. 9 application where no prior order or agreement exists. In the former case, the recipient parent, when he or she first got custody, may have validly incurred expenses based on legitimate expectations about how much child support would be provided. These expenses should be taken into consideration and a court should have proper regard to the fixed costs of the recipient parent." - See paragraph 55.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9(c) of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account ... (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Ontario Court of Appeal listed the following factors to be considered under s. 9(c): "1. Actual spending patterns of the parents; 2. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and 3. Standard of living for the children in each household." - The Supreme Court of Canada stated that "The actual spending patterns of the parents have already been considered under s. 9(b). These factors are helpful, the last one being particularly useful for the exercise of discretion in a predictable manner. ... financial statements and/or child expenses budgets are necessary for a proper evaluation of s. 9(c). Moreover, given the broad discretion of the court conferred by s. 9(c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the Guidelines can be examined directly in s. 9 with consideration of all the other factors ... Section 9(c) is conspicuously broader than s. 7." - See paragraphs 69 to 71.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines provided that "Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." - The Supreme Court of Canada stated that "It is important ... that all financial information be presented for a proper application of s. 9, but details concerning the appropriateness of individual items should be decided by the trial judge, on the basis of representations made by the parties." - See paragraph 81.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - [See Family Law - Topic 2419 and Family Law - Topic 4045.6 ].

Family Law - Topic 4045.17

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Evidence and proof - [See Family Law -Topic 2419 and sixth, seventh, ninth and tenth Family Law - Topic 4045.7 ].

Cases Noticed:

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, dist. [para. 12].

Green v. Green (2000), 138 B.C.A.C. 121; 226 W.A.C. 121; 187 D.L.R.(4th) 37; 2000 BCCA 310, refd to. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19; 43 R.F.L.(4th) 1, refd to. [para. 19].

Jamieson v. Jamieson, [2003] N.B.R.(2d) Uned. 32; 2003 NBQB 74 (Fam. Div.), refd to. [para. 27].

Berry v. Hart (2003), 190 B.C.A.C. 108; 311 W.A.C. 108; 233 D.L.R.(4th) 1; 2003 BCCA 659, refd to. [para. 30].

Fletcher v. Keilty (2004), 269 N.B.R.(2d) 302; 707 A.P.R. 302; 2004 NBCA 34, refd to. [para. 42].

Slade v. Slade (2001), 197 Nfld. & P.E.I.R. 4; 591 A.P.R. 4; 195 D.L.R.(4th) 108; 2001 NFCA 2, refd to. [para. 42].

Dean v. Brown (2002), 209 N.S.R.(2d) 70; 656 A.P.R. 70; 2002 NSCA 124, refd to. [para. 42].

Hill v. Hill (2003), 213 N.S.R.(2d) 185; 667 A.P.R. 185; 2003 NSCA 33, refd to. [para. 42].

Cabot v. Mikkelson (2004), 187 Man.R.(2d) 104; 330 W.A.C. 104; 242 D.L.R.(4th) 279; 2004 MBCA 107, refd to. [para. 42].

Dennis v. Wilson (1997), 104 O.A.C. 250 (C.A.), refd to. [para. 42].

Wylie v. Leclair (2003), 172 O.A.C. 187; 64 O.R.(3d) 782 (C.A.), refd to. [para. 42].

C.R.H.E. v. F.G.E. (2004), 199 B.C.A.C. 69; 326 W.A.C. 269; 29 B.C.L.R.(4th) 43; 2004 BCCA 297, refd to. [para. 42].

Luedke v. Luedke (2004), 198 B.C.A.C. 293; 324 W.A.C. 293; 2004 BCCA 327, refd to. [para. 42].

Gieni v. Gieni, [2002] Sask.R. Uned. 115; 29 R.F.L.(5th) 60; 2002 SKCA 87, refd to. [para. 42].

Middleton v. MacPherson (1997), 204 A.R. 37 (Q.B.), refd to. [para. 43].

Moran v. Cook, [2000] O.T.C. 507; 9 R.F.L.(5th) 352 (Sup. Ct.), refd to. [para. 43].

Harrison v. Harrison, [2001] O.T.C. 107; 14 R.F.L.(5th) 321 (Sup. Ct.), refd to. [para. 43].

Paras v. Paras, [1971] 1 O.R. 130 (C.A.), refd to. [paras. 51, 101].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 9 [para. 3].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Authors and Works Noticed:

Canada, Department of Justice, Children Come First Report: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines (2002), vol. 3, pp. 68, 69, 70 [para. 42]; 74 [para. 67].

Canada, Department of Justice, Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (1997), pp. 1 [para. 47]; 2 [paras. 36, 52]; 3 [para. 95].

Colman, Gene C., Contino v. Leonelli-Contino - A Critical Analysis of the Ontario Court of Appeal Interpretation of Section 9 of the Child Support Guidelines (2004), 22 C.F.L.Q. 63, pp. 71 to 74 [paras. 36, 52]; 77 [para. 62].

Federal/Provincial/Territorial Family Law Committee, Child Support: Public Discussion Paper (1991), pp. 10, 11 [para. 1].

Finnie, Ross, Giliberti, Carolina, and Stripinis, Daniel, An Overview of the Research Program to Develop A Canadian Child Support Formula (1995), pp. 27, 28 [para. 2].

MacDonald, James C., and Wilton, Ann C., Child Support Guidelines: Law and Practice (2nd Ed. 1998) (2004 Looseleaf Update, Release 4), vol. 1, pp. 9-11 to 9-16 [para. 42].

McLeod, James G., The Proposed Child Support Guideline Package: The Scope of Judicial Discretion, in Federal Child Support Guidelines: Reference Manual (1997), pp. F-8, F-9 [para. 48]; F-27 [para. 47].

Melli, Marygold S., and Brown, Patricia R., The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence (1994), 31 Houst. L. Rev. 543, p. 565 [para. 41].

Melli, Marygold S., Guideline Review: Child Support and Time Sharing by Parents (1999), 33 Fam. L.Q. 219, p. 232 [para. 66].

Millar, Paul, and Gauthier, Anne H., What Were They Thinking? The Development of Child Support Guidelines in Canada (2002), 17 C.J.L.S. 139, pp. 149, 155, 156 [para. 36].

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada 2004 (2004), pp. 10 [para. 102]; 254 [paras. 24, 27]; 261 [para. 52]; 263 [para. 49].

Rogerson, Carol, Child Support Under the Guidelines in Cases of Split and Shared Custody (1998), 15 C.J.F.L. No. 11, pp. 20 [paras. 4, 54]; 21 [para. 54]; 57, 58 [para. 26]; 59 [para. 33]; 64 [para. 41]; 74 [paras. 41, 44]; 75 [para. 44]; 93 [para. 33].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 164 [para. 25].

Thompson, D.A. Rollie, Annotation to C.R.H.E v. F.G.E., 2004 CarswellBC 1157, generally [para. 65].

Thompson, D.A. Rollie, Case Comment: Contino v. Leonelli-Contino (2004), 42 R.F.L.(5th) 326, pp. 329, 330 [para. 65]; 331 [paras. 62, 65]; 332 [para. 72].

Wensley, Kim Hart, Shared Custody - Section 9 of the Federal Child Support Guidelines: Formulaic? Pure Discretion? Structured Discretion? (2004), 23 C.F.L.Q. 63, generally [para. 26]; pp. 70 [para. 41]; 83, 84, 85 [paras. 36, 52, 62]; 90 [para. 27].

Counsel:

D. Smith, Susan E. Milne and Gary Joseph, for the appellant;

Thomas G. Bastedo, Q.C., and Samantha Chousky, for the respondent.

Solicitors of Record:

MacDonald & Partners, Toronto, Ontario, for the appellant;

Bastedo Stewart Smith, Toronto, Ontario, for the respondent.

This appeal was heard on January 14, 2005, by McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The court delivered its decision on  November 10, 2005, in both official languages, including the following opinions:

Bastarache, J. (Binnie, LeBel, Deschamps, Abella and Charron, JJ., concurring) - see paragraphs 1 to 83;

Fish, J., dissenting - see paragraphs 84 to 157.