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Page 6 November 3, 2014 • Law Times www.lawtimesnews.com COMMENT ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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In a nutshell, the appeal court has now endorsed the use of the guidelines in sup- port reviews. The decision contrasts with the courts' previous reticence to apply the guidelines in the context of a review. In Gray v. Gray, the parties had been together for approximately 15 years. Dur- ing the marriage, Kathleen Gray had worked as a part-time f light attendant for a number of years while her husband had worked on a full-time basis. The couple had four children arising out of their mar- riage and, following the separation, she re- tained primary care for them. At the time of separation (or shortly thereafter), she was on a disability pension as well as pri- vate disability benefits due to health issues. Her income was approximately $30,000 per year while James Gray was earning more than $100,000 per year. In a 1998 divorce judgment, Kathleen was to receive approximately $2,300 per month in child support (including s. 7 expenses) and $800 per month in spou- sal support. The reasons for judgment ind icated the level of spou- sal support was lower than it otherwise would be due to the high amount of child support she was to receive. The court adjusted child sup- port a few times thereafter to address matters such as ar- rears. Ultimately, as the chil- dren got older and the child support obligation clearly lessened, Kathleen brought a motion to change that led to this appeal. The motion pro- ceeded as a trial. The motion judge found child support ought to have decreased over the years and James had overpaid. Given the re- duction in child support, Kathleen took the position that her spousal support, on both a compensatory and needs ba- sis, ought to have increased over time as child support declined. As a result of the motion hearing, the court dismissed her claim and ordered the 1998 level of spou- sal support to continue based purely on a finding of needs. She appealed, arguing that in all of the circumstances, simply continuing with $800 per month in sup- port wasn't appropriate and the findings had resulted from a misapprehension of the facts as well as errors in principle. Speaking for a unani- mous appeal court panel, Justice Peter Lauwers noted, and rightly so, that the 1998 order for spousal support didn't address Kathleen's actual need at that time. As the court had clearly stated in the original reasons, the level of spousal support was lower than she should have received based on her need due to the high level of child support. Additionally, Lauwers held that the trial judge's failure to consider the guideline ranges in making the current, ongoing determination of spousal support was an error. He found that despite previ- ous findings, including in Fisher (which notably wasn't a variation proceeding), the guidelines can and should apply to variation proceedings. The guidelines include provisions that discuss their applicability to certain variation proceedings such as a move from the with-child to the without-child support formula and increases and de- creases in parties' incomes. They do, however, limit their applicability to situ- ations such as those that involve second families and second support obligations. My reading of this case and the reasons given by Lauwers lead me to believe the Court of Appeal has extended the reach of the guidelines even further. It appears that not only can we use the guidelines in variations that deal simply with income f luctuations but we can now also use them in situations such as changes re- sulting from obligations to second fami- lies. In this regard, Lauwers concluded the court tasked with the review should first make a determination of whether consideration of the guidelines in these other, more complex situations is appro- priate based on the facts. If the answer is affirmative, the court should proceed to consider the guidelines. This has been an ongoing debate in the lower courts since the guidelines came out in their final form in 2008. Initially, we worked on the basis that the guidelines simply didn't apply. Slowly, some lower courts found rationales to rely on the guidelines while others ruled otherwise. Finally, we seem to have some clarity on the issue. LT Marta Siemiarczuk is a lawyer practis- ing family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. Good news on access to justice W ith the legal aid threshold for a single person stuck at $10,800 for years, last week's announcement that it will finally start to rise is good news. As Law Times reports on page 2 this week, the threshold rises to $11,448 as of this month. According to Legal Aid Ontario, that means 121,000 more people are now eligible for cer- tificates as well as duty counsel and legal clinic services. Of course, that doesn't mean lawyers and legal clinics will now be serving that many new legal aid clients. Instead, that's the number of additional people Ontario's legal aid system now covers based on the new cri- teria. They'd have to have a legal issue such as a criminal charge and meet other criteria in order to actually get legal aid services. And, fortunately, there's more to come. The province is raising the threshold in three phases with two further six-per-cent increases over the next two years. It's all part of the provincial government's promise to increase funding for legal aid in its budget earlier this year. It's certainly a positive development given the clearly inadequate threshold that had existed until now. Earlier this year, LAO noted just 7.1 per cent of Ontarians were eligible for legal aid services under the previous criteria, so the coming changes will certainly increase that number. But, of course, $11,500 is still paltry. And that will also be the case when the threshold eventually rises to close to $13,000. So we should give the provincial government credit for finally addressing a long-standing complaint about On- tario's justice system. The roughly $95 million it's providing over three years to increase legal aid eligi- bility is significant, especially in light of its financial difficulties. And while the increase will hopefully make things a bit easier for the justice system, it's still shameful the threshold sat at $10,800 for so long. What's also shameful is the fact federal funding for legal aid has remained stagnant for so long as well. With the province stepping up, it's now time for the federal government to do its part to address the gap in access to justice. — Glenn Kauth Family Law Marta Siemiarczuk

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