The Lawyers Weekly - November 11, 2011

appellant. Appellant sought variation of the will. The chambers judge determined that he was bound by Hope v Raeder, in which the word “children” in s. 2 of the Wills Variation Act (B.C.) was restricted to natural or adopted children of the testator.

HELD: Appeal dismissed. The facts were not sufficiently compelling to justify reconsideration of the Hope decision. The plaintiff was unable to bring herself within the definition of “child” under comparable legislation in any jurisdiction. The testator never had any intention of acting as a father to appellant and did not consider her as a member of his family. The testator did not stand in loco parentis to appellant. The relationship between appellant and the testator did not justify expansion of the meaning of “child” or “children” to fit appellant’s circumstances.

Doman Peri v. Doman Estate, [2011] B.C.J. No. 1904, B.C.C.A., per Prowse J.A. (Frankel, Neilson, Bennett and Hinkson JJ.A. concurring), Oct. 14/11. Digest No. 3126-011 (Approx. 9 pp.)

The husband fell into areas in 2009. When one child moved out of the wife’s home and left school in 2009, the husband reduced child support and paid $2,000 per month to that child. The 2011 order reduced child support to $4,100 per month as of April 2011 based on a material change in circumstances.

HELD: Appeal dismissed. Cross-appeal allowed. The reduction in child support was justified as the husband had two other dependent children, his income had changed and one of the children had moved out and left school. The chambers judge did not err in concluding that there were no arrears on the basis that the husband’s over-payments and under-pay-ments balanced out. The judge did err, however, in maintaining the original 1998 support for the first three months of 2011. That part of the order was varied to provide that payments of $4,100 were to commence in January 2011.

McMahon v. Miller, [2011] A.J. No. 1062, Alta. C.A., per Slatter J.A. (O’Ferrall and Park JJ.A. concurring), Oct. 14/11. Digest No. 3126-013 (Approx. 3 pp.)

Motion by the mother for production of documents from third party organizations. Cross-motion by the father for security for costs. The parties married in 2001. They had two sons, aged 12 and 10. In 2007, the family moved to the State of Georgia. The parties separated in 2009. The Georgia court found that acts of violence had occurred and, on consent, it granted the mother temporary custody of the children, temporary child and spousal support and an order restraining the father from contact with the mother. The court later awarded the parties temporary joint legal custody with the mother to have physical custody. The mother left Georgia and returned to Ontario with the children. The mother did not attend the hearing of her petition for divorce in Georgia. As a result, the Georgian court awarded sole custody of the children to the father. Thereafter, the mother filed an application in Ontario for custody of the children, child support and for a restraining order on the basis that the children would suffer serious harm if returned to the father’s custody because they had been subjected to physical and emotional abuse. The father moved to have the Georgia order recognized. The court recognized and enforced the Georgia court’s order and the mother was ordered to surrender the children to the father. The mother appealed the enforcement of the Georgia order and sought an order to compel certain third party organizations, including children’s aid societies and the children’s schools, to provide her with all documents relating to her, the father or the children.

HELD: Motion dismissed. Cross-
motion allowed. While the documents
requested by the mother were not avail-
able by any other method, the request was
part of a pattern of the mother’s conduct
to delay the matter, and the documents
would not have met the test for introduc-
tion of fresh evidence on appeal. An order
for security of costs was appropriate as
the mother had insufficient assets in
Ontario to satisfy a costs order. Further-
more, her appeal was devoid of merit as
there was no evidence of the Georgia
court’s inability to consider the best inter-
ests of the children.

FAMILY LAW

ACCESS – The parties could not enter into an agreement that terminated the father’s access to the child of the marriage in exchange for the termination of child support obligations.

Motion by the father to change a final consent order entered into by the parties. The consent order terminated the father’s access to his young child, rescinded his obligation to pay arrears of child support and eliminated his obligation to pay ongoing child support. The parties’ son was 5 years old. The father had had drug abuse issues and had been sporadically employed. He relinquished his access rights in exchange for a termination of his child support obligations. Since the consent order, the father had undergone counselling, stopped taking drugs and obtained a full-time job.

HELD: Motion allowed. The court had jurisdiction to vary the order regardless of any change in circumstances. The agreement giving rise to the order was inconsistent with the policies underlying the Divorce Act and was invalid. The rights that were bargained away by the agreement were rights of the child, not rights of the parents. The father was ordered to pay monthly child support of $420. The parties were to share section 7 expenses proportionately. The parties were given two weeks to arrive at an arrangement for supervised access.

Kroupa v. Stoneham, [2011] O.J.
No. 4350, Ont. S.C.J., Gray J., Oct.
4/11. Digest No. 3126-012 (Approx. 10
pp.)
MATRIMONIAL HOME – The
court maintained the status quo and
allowed the mother and children to
remain in the matrimonial home.

Motion by the mother for custody, child support, exclusive possession of the matrimonial home and an order the father pay the monthly expenses, or pay that amount as spousal support. Cross-motion by the father for joint custody and exclusive possession of the matrimonial home. The parties lived together for three years, for one of which they were married. After separation, the parties tried to live separately within the matrimonial home. In July 2011, the father was charged with assaulting the mother and required to leave the matrimonial home. The mother and the two children had lived there since. The father earned $45,909 annually. The mother was a part-time student and worked 20 hours per week at $10.25 per hour. Under the current consent order, the five-year-old and three-year-old children lived primarily with the mother and the father had access every Friday and Saturday and evenings the mother worked. The mother argued the status quo should continue.

HELD: Motion and cross-motion allowed in part. The current living arrangements were settled, structured and greatly reduced conflict while allowing the children to spend significant time with both parents. Preserving the status quo was in the children’s best interests. Since the father was not permitted to attend the matrimonial home and the children should not be forced to leave the home, the mother was granted exclusive possession. The father was to pay $694 monthly child support. Both parties were able parents and able to communicate about major issues. The parties were ordered to jointly make decisions on significant issues regarding the children.

Porter v. Hamilton, [2011] O.J. No.
4363, Ont. S.C.J., Shaw J., Sept. 30/11.
Digest No. 3126-014 (Approx. 10 pp.)
PROPERTY – The trial judge did
not err in his valuation of the shares of
a sawmill business.

Appeal by the wife from the valuation of a sawmill business for the purpose of division of family assets. The parties separated in May 2009 after a 28-year marriage. A family-operated hardwood sawmill business provided employment to the husband and three children. The principle issue regarding the division of assets was the value of the mill. The company owned the real property on which the mill was situated and the mill’s equipment. The company’s financial statements for the previous five years showed operational losses in two years and bare gains in a third year. The husband’s expert valued the shares of the business at $369,000 using a voluntary liquidation approach. The wife’s expert valued the business at $862,000 based on its fair market value as a going concern. The trial judge accepted several of the critiques raised by the wife’s expert. The judge concluded that the appropriate valuation of the shares was $500,000. The wife appealed on the ground that the judge erred in law by failing to provide adequate or sufficient reasons for his valuation of that asset.

HELD: Appeal dismissed. There was no error of law in the adequacy of the trial judge’s reasons. The judge was faced with a wide range of potential share values, calculated under two different valuation approaches. The judge recognized that the court’s valuation would necessarily be arbitrary to some degree, given the uncertainty associated with the company’s future. In choosing a fair market value of $500,000, it could be inferred that the judge took into account the competing considerations of the company’s potential, its value as an ongoing concern, the unique features of the business and

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CHILD SUPPORT – The appellate
court dismissed the wife’s appeal from
an order varying child support and
cancelling support arrears.

Appeal by the wife from a 2011 order varying a 1998 child support order and cancelling the support arrears. Cross-appeal by the husband from a provision of the order continuing child support as set out in the 1998 order for the first three months of 2011. Pursuant to the 1998 order, the husband was required to pay $6,500 per month in child support for two children until each child had completed his first post-secondary degree.

PROCEDURE – The appellate court
dismissed the mother’s motion for pro-
duction of documents from third party
organizations and ordered her to pay

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RE: ESTATE OF DOROTHY
MILLIE SWINGLE, Deceased
Anyone having knowledge of a Will
of Dorothy Millie Swingle, late of
Hamilton, Ontario, who died on
November 10, 2001 is requested to
contact Mary Lou Dingle, Lazier
Hickey Lawyers LLP, 25 Main St. W.,
15th Floor, Hamilton, ON, L8P 1H1,
T: 905-525-3652; F: 905-525-6278.

RE: ESTATE OF JOHN
SANEFORD SWINGLE, Deceased

Anyone having knowledge of a Will of John Saneford Swingle, late of Hamilton, Ontario, who died on or about September 28, 1982 is requested to contact Mary Lou Dingle, Lazier Hickey Lawyers LLP, 25 Main St. W., 15th Floor, Hamilton, ON, L8P 1H1, T: 905-525-3652; F: 905-525-6278..