Decaen v. Decaen, 2013 ONCA 218

• Judge: Winkler, C.J.O., Armstrong and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Monday April 08, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 218;(2013), 303 O.A.C. 261 (CA)

Decaen v. Decaen (2013), 303 O.A.C. 261 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AP.005

Denise Decaen (applicant/appellant/respondent by way of cross-appeal) v. Marc Decaen (respondent/respondent/appellant by way of cross-appeal)

(C54891; 2013 ONCA 218)

Indexed As: Decaen v. Decaen

Ontario Court of Appeal

Winkler, C.J.O., Armstrong and Hoy, JJ.A.

April 8, 2013.

Summary:

Spouses separated in 2007. By consent, the mother had custody of their four children. In 2011, the father obtained a restraining order to prevent the mother's intended move from Sudbury to Mississauga with their two youngest children. The mother moved without the children, who stayed in Sudbury with the maternal grandparents. In January 2012, the trial judge awarded custody to the mother conditional on her returning to Sudbury. Otherwise, the father was awarded custody. The mother appealed and obtained a stay of the order. The children were still with the grandparents. At issue on appeal was whether the trial judge failed to properly consider the best interests of the children in denying the mother custody if she stayed in Mississauga and issues respecting child and spousal support. The father appealed that portion of the trial judge's order respecting post-retirement spousal support and support arrears.

The Ontario Court of Appeal dismissed the appeal, subject to varying the mechanics for implementing the trial judge's order, slightly modifying the terms of access, and making provisions to protect the mother's entitlement to retirement-period spousal support. The court dismissed the father's cross-appeal.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - Spouses separated in 2007 - Their four children stayed with the stay-at-home mother - In 2011, the father obtained a restraining order to prevent the mother's intended move from Sudbury to Mississauga with their two youngest children - The mother moved without the children and obtained full-time employment - The children stayed in Sudbury with the maternal grandparents - In January 2012, the trial judge awarded custody to the mother conditional on her returning to Sudbury - Otherwise, the father was awarded custody - The mother appealed and the order was stayed pending the appeal - The Ontario Court of Appeal dismissed the appeal - An appellate court could not overturn a custody order in the absence of material error, a serious misapprehension of the evidence or an error in law - The trial judge properly considered the best interests of the children under the Gordon v. Goertz test (SCC) - There was no palpable and overriding error in assessing the facts and no error in law - See paragraphs 19 to 46.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - A mother was denied permission to relocate to another city with the two youngest children of the marriage (eight year old twins) - On appeal, the mother argued that the trial judge erred in failing to elaborate why he gave limited weight to the children's wish to relocate with her - The Ontario Court of Appeal rejected the argument - The court stated that "it is thought that the expressed preferences of young children are more likely to be fleeting, subject to external influence and inconsistent with their actual best interests. ... In assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity test; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view" - See paragraphs 41 to 42.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Family Law - Topic 1865].

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4014].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See Family Law - Topic 4021.6].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - A trial judge found that a father's obligation to pay child support to his adopted daughter terminated when she completed her university undergraduate degree, because of the father's limited financial resources - The mother appealed, arguing that the father should continue to pay child support while the daughter pursued a graduate degree - The Ontario Court of Appeal, in dismissing the mother's appeal, stated that "there was extensive evidence before the trial judge of the family's limited financial resources. While parents of significant means may be ordered to pay support for a second degree, support for a second degree is very much subject to the parent's ability to pay" - See paragraphs 57 to 58.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay - [See Family Law - Topic 4014].

Family Law - Topic 4021.6

Divorce - Corollary relief - Maintenance awards - Retirement savings - Spouses separated in 2007 - The husband made an assignment in bankruptcy in 2008 - His pension was exempt - The wife received her 50% share of the marital home, but her entitlement to an equalization of net family property became unenforceable due to the bankruptcy - The husband was ordered to pay monthly spousal support and "an amount equal to one-half the value by which his pension increased between the date of marriage and the date of separation by means of periodic spousal support commencing" after he retired - This one-half value was now quantified as $54,000 - The father appealed the order for post-retirement support, arguing, inter alia, that the post-retirement support constituted an impermissible reallocation of capital under the guise of spousal support - The mother argued that the judge erred in failing to award immediate $54,000 lump sum support - The Ontario Court of Appeal dismissed both appeals - The court stated that "while it is true that the trial judge, in ordering retirement-period support equal to one-half the value by which the father's pension increased between the date of marriage and the date of separation, might appear to have conflated the principles relevant to equalization payments versus support awards, the amount awarded for spousal support is not unreasonable in this case and we would not disturb the order" - As for the lump sum claim, the trial judge did not err in finding that the husband lacked the ability to pay a lump sum - However, the court did vary the order to secure the wife's entitlement to post-retirement support should the husband die before he retired or was eligible to retire - See paragraphs 64 to 78.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4021.6].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 4014].

Cases Noticed:

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 13].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 15].

Van de Perre v. Edwards - see K.V.P. v. T.E.

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 20].

W.P.N. v. B.J.N. (2005), 207 B.C.A.C. 76; 341 W.A.C. 76; 249 D.L.R.(4th) 352; 2005 BCCA 7, refd to. [para. 58].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 71].

Schreyer v. Schreyer, [2011] 2 S.C.R. 605; 418 N.R. 61; 268 Man.R.(2d) 154; 520 W.A.C. 154; 2011 SCC 35, refd to. [para. 72].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 74].

Marriano v. Marriano, [1992] O.J. No. 2730 (C.A.), refd to. [para. 74].

Davis v. Crawford (2011), 277 O.A.C. 200; 106 O.R.(3d) 201; 2011 ONCA 294, refd to. [para. 74].

Authors and Works Noticed:

Bala, Nicholas, Talwar, Victoria, and Harris, Joanna, The Voice of Children in Canadian Family Law Cases (2005), 24 C.F.L.Q. 221, generally [para. 42].

Counsel:

Kristen Normandin and Arin Tint, for the appellant/respondent by way of cross-appeal;

Marc Decaen, on his own behalf;

Carolyn Leach, for the Office of the Children's Lawyer.

This appeal and cross-appeal were heard on March 1, 2013, before Winkler, C.J.O., Armstrong and Hoy, JJ.A., of the Ontario Court of Appeal.

On April 8, 2013, the following judgment was released by the Court.