Lawson v. Lawson, (2006) 214 O.A.C. 94 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Gillese, Armstrong and MacFarland, JJ.A.
• Citation: (2006), 214 O.A.C. 94 (CA),2006 CanLII 26573 (ON CA),2006 CanLII 26573 (NS CA),81 OR (3d) 321,29 RFL (6th) 8,[2006] CarswellOnt 4789,[2006] OJ No 3179 (QL),150 ACWS (3d) 422,214 OAC 94
• Date: 21 July 2006

Lawson v. Lawson (2006), 214 O.A.C. 94 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AU.026

Beverley Helen Lawson (applicant/respondent) v. Scott Roger Lawson (respondent/appellant)

(C43802)

Indexed As: Lawson v. Lawson

Ontario Court of Appeal

Gillese, Armstrong and MacFarland, JJ.A.

August 4, 2006.

Summary:

A couple with three young children separated after a 12 year marriage. The wife sought custody of the children, spousal and child support, a determination of what part of their property constituted the matrimonial home and an equalization of family property.

The Ontario Superior Court determined the issues accordingly. The husband appealed.

The Ontario Court of Appeal allowed the appeal in part.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Ontario Court of Appeal commented on the duty of a trial judge to give reasons - The court noted that the appeal arose in the case at bar because of a paucity of reasons given for decision at the trial level - The reasons were three and a half typewritten pages in length although the decision involved a number of family law issues - The court stated that "a tension exists between the right to adequate reasons and the need for appellate deference. In the end, however, where an order is made without adequate reasons, unless the reasons are implicit or patent on the record, an appellate court has no access to the underlying reasons for the order and cannot afford it deference" - In this case, the court remitted the matter of equalization of family property for a new trial because of the inadequacy of the trial judge's reasons - See paragraphs 8 to 13 and 49 and 50.

Family Law - Topic 868.3

Husband and wife - Marital property - Distribution orders - Equalization payments - Shortly after they were married, a couple moved into a house on a 20-acre property which had been given to the husband by his father when he divided up his farm property - The couple had three children - They separated after 12 years of marriage - The trial judge dealt with the equalization of net family property - The husband appealed - The Ontario Court of Appeal remitted the property issues for a new trial where the trial judge's reasons on this issue were inadequate - See paragraphs 46 to 50.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare of child paramount - The Ontario Court of Appeal reiterated that custody was to be decided in the best interests of the children - See paragraph 14.

Family Law - Topic 1910

Custody and access - Appeals - General - A couple with three children separated after 12 years of marriage - The trial judge awarded sole custody of the children to the wife with access to the husband - The husband appealed, seeking joint custody and a change in access - The Ontario Court of Appeal dismissed the appeal - The court declined to deal with the husband's access appeal because this was a matter which should be pursued to a first instance court, on a proper record, before being raised in an appellate court - See paragraphs 28 and 29.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - A couple with three children separated after 12 years of marriage - The trial judge awarded sole custody of the children to the wife with access to the husband - The husband appealed, seeking joint custody - The Ontario Court of Appeal dismissed the appeal - The court stated that the key consideration in custody cases was the best interests of the children and the trial judge was in the best position to make that determination - Considerable deference was owed to the trial judge's findings of fact - It was clear that the judge accepted the wife's testimony and acted in the best interests of the children - In light of the judge's findings and on the record, in particular a report of the Office of the Children's Lawyer, the court saw no basis to interfere with the trial judge's findings and dismissed the appeal - The court stated however that it would have been preferable had the trial judge dealt expressly with the husband's arguments and explained why he rejected them - See paragraphs 14 to 27.

Family Law - Topic 2072

Custody and access - Joint custody - When available - The Ontario Court of Appeal reiterated that joint custody was not appropriate where the parents were unable to co-operate or communicate effectively - See paragraph 15.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A couple with three children separated after 12 years of marriage - The trial judge found that the husband was intentionally underemployed - The husband was a skilled trades person, but worked as a farmer and a volunteer firefighter - The trial judge imputed income to the husband and calculated child support accordingly - The husband appealed - The Ontario Court of Appeal dismissed the appeal where, although the judge did not articulate the legal principles for which he had regard when making his determination that the husband was underemployed, it was clear from the reasons that his findings were based on the applicable legal principles - See paragraphs 30 to 39.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See Courts - Topic 583 ].

Cases Noticed:

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298 (S.C.C.), refd to. [para. 9].

R. v. Tzarfin (M.) (2005), 201 O.A.C. 183 (C.A.), refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 11].

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. 12].

Kaplanis v. Kaplanis (2005), 194 O.A.C. 106 (C.A.), refd to. [para. 15].

Drygala v. Pauli (2002), 164 O.A.C. 241 (C.A.), refd to. [para. 36].

Counsel:

Harold Niman and John P. Schuman, for the respondent;

Carole Curtis and Valda Blenman, for the appellant.

This appeal was heard on July 21, 2006, before Gillese, Armstrong and MacFarland, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., delivered the following judgment for the court which was released on August 4, 2006.