Senos v. Karcz, (2014) 321 O.A.C. 343 (CA)

• Jurisdiction: Ontario
• Judge: Juriansz, Pepall and Strathy, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2014), 321 O.A.C. 343 (CA),2014 ONCA 459
• Date: 30 January 2014

Senos v. Karcz (2014), 321 O.A.C. 343 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.017

Natalie Senos (applicant/respondent) v. Peter Karcz (respondent/appellant)

(C57331; 2014 ONCA 459)

Indexed As: Senos v. Karcz

Ontario Court of Appeal

Juriansz, Pepall and Strathy, JJ.A.

June 12, 2014.

Summary:

The parties were married in 1984. Their child (Antoni) was born in 1989. In 1993, the parties divorced and the father was ordered to pay child support. Antoni was diagnosed with schizophrenia and bipolar disorder in 2007. The parties agreed that Antoni remained a "child of the marriage" as a result of his disability. When Antoni became entitled to support under the Ontario Disability Support Program (ODSP), the father moved to vary the amount of child support payable. He argued that child support should be reduced by the amount of Antoni's ODSP income support.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 1547, dismissed the motion. The father appealed.

The Ontario Divisional Court, Kiteley, J., dissenting, in a decision not reported in this series of reports, dismissed the appeal. The father appealed again.

The Ontario Court of Appeal allowed the appeal and remitted the matter for trial on a more complete factual record.

Family Law - Topic 2355

Maintenance of spouses and children - Maintenance of children - Effect of benefits from third parties - [See Family Law - Topic 4032 ].

Family Law - Topic 4032

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of assistance by the state - The parties divorced in 1993 when their son (Antoni) was four years old - Antoni lived with his mother - The father was ordered to pay child support - Antoni was diagnosed with schizophrenia and bipolar disorder in 2007 - The parties agreed that he remained a "child of the marriage" as a result of his disability - When Antoni became entitled to support under the Ontario Disability Support Program (ODSP), the father moved to reduce child support by the amount of Antoni's ODSP income support - The trial judge dismissed the motion, finding that it was not inappropriate to apply the Table approach under s. 3(2)(a) of the Federal Child Support Guidelines - The Ontario Court of Appeal allowed Antoni's appeal - The trial judge erred in principle by applying the Table approach - Antoni's receipt of almost $10,000/year in ODSP income support was, in itself, sufficient to displace the application of s. 3(2)(a) in favour of s. 3(2)(b) which would have regard to Antoni's "condition, means, needs and other circumstances" - This approach was particularly appropriate given Antoni's disability and society's commitment to share in his care - Section 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines - Children over the age of majority - [See Family Law - Topic 4032 ].

Family Law - Topic 4045.15

Divorce - Corollary relief - Maintenance - Child support guidelines - Table amount deductions for third party benefits to children - [See Family Law - Topic 4032 ].

Cases Noticed:

Disability Support Program (Ont.) et al. v. Ansell (2011), 281 O.A.C. 224; 2011 ONCA 309, refd to. [para. 15].

Lewi v. Lewi (2006), 209 O.A.C. 344; 80 O.R.(3d) 321 (C.A.), refd to. [para. 16].

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. 24].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 31].

Canada v. Canada-Somers (2008), 228 Man.R.(2d) 106; 427 W.A.C. 106; 2008 MBCA 59, refd to. [para. 39, footnote 2].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 42].

Briard v. Briard (2010), 297 B.C.A.C. 5; 504 W.A.C. 5; 94 R.F.L.(6th) 33; 2010 BCCA 431, agreed with [para. 43].

Geran v. Geran (2011), 371 Sask.R. 233; 518 W.A.C. 233; 2011 SKCA 55, refd to. [para. 65].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 65].

W.P.N. v. B.J.N. (2005), 207 B.C.A.C. 76; 341 W.A.C. 76; 2005 BCCA 7, refd to. [para. 65].

Magne v. Magne (1990), 65 Man.R.(2d) 241; 26 R.F.L.(3d) 364 (Q.B. Fam. Div.), refd to. [para. 66].

Cossette v. Cossette, [2003] O.T.C. 953 (Sup. Ct.), refd to. [para. 66].

Liscio v. Avram, [2009] O.T.C. Uned. J72 (Sup. Ct.), refd to. [para. 66].

Welsh v. Welsh (1998), 79 O.T.C. 81 (Gen. Div.), refd to. [para. 66].

Blonski v. Blonski, [2010] O.T.C. Uned. 2552; 2010 ONSC 2552, refd to. [para. 66].

Henry v. Henry, [2010] O.T.C. Uned. 6990; 2010 ONSC 6990, refd to. [para. 66].

Vivian v. Courtney, [2012] O.T.C. Uned. 6585; 2012 ONSC 6585, refd to. [para. 66].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Regulations, SOR/97-115, sect. 3(2)(a), sect. 3(2)(b) [para. 12].

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

Authors and Works Noticed:

MacDonald, James C., and Wilton, Ann C., Child Support Guidelines: Law and Practice (2nd Ed. 2004), vol. 1, p. 3-10 [para. 39].

Counsel:

Aaron Franks, Michael Zalev and Melanie Sager, for the appellant;

Martha McCarthy and Eric Sadvari, for the respondent.

This appeal was heard on January 30, 2014, before Juriansz, Pepall and Strathy, JJ.A., of the Ontario Court of Appeal. Strathy, J.A., delivered the following judgment for the court on June 12, 2014.