Law Times

Page 6 NOVeMBeR 2, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT A hefty agenda here was a dizzying array of legal developments from the On- tario government last week. On Wednesday, the province announced it had passed its long-awaited legislation dealing with strategic litigation against public participation. Following years of struggle to get the leg- islation passed, the Protection of Public Participation Act will provide the courts with an expedited process to identify and dismiss lawsuits aimed at silencing legitimate public debate. Upon royal assent, the law will apply to lawsuits that began on or after Dec. 1, 2014. The same day, the government released its regulations aimed at regu- lating and prohibiting the controversial practice of street checks. The regulations will expressly prohibit the random and arbitrary collection of identifying information by police and establish clear rules for volun- tary interactions with officers. On top of that, the province revealed legislation to tackle sexual violence and harassment the day before. The legislation, the sexual violence and harassment action plan act, would affect a number of areas, including employers' duties to protect workers and investigate complaints. The changes are welcome. The Protection of Public Participation Act will provide an important bulwark to free expression and follows the work of an expert panel that sought to balance both the rights of plain- tiffs and defendants where an allegation of strategic litigation against public participation arises. The police regulations, meanwhile, offer an overdue framework to govern officers' interactions with the public and make it clear that arbitrary stops are off the table. With street checks hav- ing become such a poisonous issue, the province had to step in. All of these provincial developments are happening as Canadians Court gets it right on imputing gifts to husband as income he Ontario Court of Appeal re- leased a very interesting decision recently, Korman v. Korman, that deals with two important questions that will affect family lawyers' advice on property and support issues. The first was whether the husband had a beneficial interest in a matrimonial home he had put into his wife's sole name for the purposes of creditor proofing (and specifically, whether he could share in the increase in value of the property after sepa- ration). The second was whether the court ought to impute to the husband money his parents had consistently gifted to him throughout the marriage and after separa- tion as income for support purposes. The case is a very important one for counsel to read as it goes a long way to- ward clarifying years of confusion in the law as to the interplay between equitable remedies and the equalization scheme in the Family Law Act. Indeed, it confirms that resulting trust claims are very much a factor to consider in the equalization context and that the court must assess them before making an equalization cal- culation. Only once it has determined both legal and beneficial ownership can the equalization analysis take place. What I find more interesting in this case, however, is the discus- sion and, frankly, the finding by the trial judge that gifts of money by the husband's parents ought to factor into his income for the purposes of child and spousal support. While prior judicial decisions have left the door for that somewhat open, the accepted norm certainly had been that gifts of money, even if they occur regularly, shouldn't factor into an assessment of income. It's an interesting de- bate with good arguments on both sides. If you look at federal and provincial spousal support legislation, the issue isn't simply income but rather the means and needs of the parties. Child support isn't as broad and, under both pieces of legis- lation, it generally must be determined pursuant to the applicable child support guidelines. There are two elements to child support: table support and contribution to special and extraordinary expenses. The starting point is that table support must be paid pursuant to the applicable table under the guidelines based on the payer's line 150 income as found in his or her income tax return unless the court accepts that it can impute the income. Section 19 of the guidelines lists various situations where it may impute income. The list, however, isn't exhaustive. When looking at contribution to special and ex- traordinary expenses under s. 7 of the guidelines, there's even more f lexibility as there's refer- ence to the court considering the means of the parties rather than just strict income. In Korman, the result at trial was imputation of some income to the husband due to his mother's historical gifts of money. The husband appealed and argued that doing so effectively shifts his support ob- ligation on to his mother. The Court of Appeal disagreed, and I tend to as well. Throughout the marriage and the en- tirety of the children's lives, the paternal grandparents supplemented the family's livelihood. They didn't have to, but that's what happened. There didn't seem to be any evidence before the court that that pattern would end any time soon. Given the husband's support obliga- tions to his former spouse and his children and the historical pattern of monetary gifts and having regard to the language of the legislation, it was certainly open to the court to impute income. I don't agree that doing so shifts the support obligation on to the husband's mother. To me, that's like saying that considering employment income in a support analysis shifts the support burden on to the payer's employer. Such an order simply recognizes the reality of what's happening at the time of the trial while relying on evidence of past events. Nothing in such an order requires the grandmother to continue making mone- tary gifts. Should she choose to stop doing so, the husband always has the ability to seek a variation order based on a material change in circumstances. The case may well open up the door to more litigation over income determina- tion, at least initially. However, the analysis contained in it is sound and, in my view, correct when assessing an ability to pay support. Korman is a very important fam- ily law case for 2015 and will certainly af- fect the opinions we give to clients on the issues of both property and support. 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. ©2015 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. LT.Editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $199.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Keith Fulford at ........... 416-649-9585 or fax: 416-649-7870 keith.fulford@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief . . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . . . Neil Etienne Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editors . . Adela Rodriguez & Jennifer Wright Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . .Sharlane Burgess Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth gear up for a new federal government under the Lib- eral party this week. As Law Times columnist Richard Cleroux notes on the opposite page, incoming prime minister Justin Trudeau will have a massive agenda. Besides economic issues, major priorities will include meeting a promise to bring 25,000 Syrian refugees to Canada by the end of the year. The government will also face the tough task of figuring out how to stick- handle its proposal to legalize marijuana possession and quickly come up with a response to the Supreme Court's ruling on assisted suicide. When it comes to the big picture, the Liberal plat- form wasn't all that radical, but the party did make a slew of promises that will mean notable change in a number of areas. People may agree or disagree with what's on the table, but it's clear it's going to be a busy and interesting time for legal reform on both the federal and provincial levels. LT T Family Law Marta Siemiarczuk T

• Cover