Law Times

Law Times • sepTember 19, 2016 Page 7 www.lawtimesnews.com COMMENT First-family-first principle affirmed A recent Divisional Court case has some interesting facets. The ruling addresses the law on variations of support orders pursuant to the Divorce Act, and confirms the principle that "first family first" is still alive and well in Ontario. In Dean v. Dean, 2016 ONSC 4298, Vesna Dean had numerous medical con- ditions that plagued her during and after her marriage to James Dean, including lupus and an anxiety disorder. In 2009, she and James Dean part- ed ways and settled matters by way of a consent Divorce Order that included in- definite spousal support for Vesna Dean in the monthly amount of $1,500. Her only other sources of income were CPP disability and an insurance disabil- ity benefit. At the time that the divorce order was obtained, James Dean was working as a police officer with an annual income of approximately $80,000. However, he later changed careers to become a criminal lawyer, which was his occupation at the time of the motion. He also married a new spouse in 2010, who had three children of her own adopt- ed by James Dean, thereby eliminating the children's biological father's obliga- tion to continue paying child support. James Dean further adopted the child of a deceased friend who apparently had no one else to care for him. As a result of the couple losing the pri- or child support for her children and the adoption of the friend's child, and James Dean's own deteriorating health, he brought a motion to change support on the basis of a material change in circumstances. By this time, his new wife was also not work - ing as one of her children was suffering from a se- vere anxiety disorder that made it necessary for her to be present at home dur- ing the day. The motions judge granted the requested re- lief on the basis of a ma- terial change in circumstances as argued by James Dean, including by making a finding that Vesna Dean's financial de- pendence was unrelated to the circum- stances of the marriage and seemingly balanced the financial burdens/obliga- tions on a pure needs-based approach. The judge reduced Vesna Dean's spousal support to nearly half of what it had been, Vesna Dean appealed and the Divisional Court, quite rightly in my view, reinstated the original order. "The motion judge erred in law when she saddled the appellant with the finan- cial brunt of the respondent's voluntary decisions. "As the judge stated, the appellant had to adapt her lifestyle to a decreased in- come," said the Divisional Court ruling. It also noted "the motion judge gave no considera- tion to how the respondent could remedy the financial problems that he voluntari- ly created and assumed. "For example, the re- spondent could sell his house to access the equity and rent a home." From an evidentiary per- spective, what went wrong in this case was a significant lack of evidence of James Dean's deteriorating health that allegedly made his abil- ity to continue his current income level difficult. The court noted that the motions' judge was apprised of the lack of in- dependent medical evidence, but seemed to have excused this because Vesna Dean also did not lead much independent medical evidence of her continued con- ditions. The Divisional Court clarified that this was both a misapprehension of the facts and the law in the sense that it is up to the party seeking to vary an order to show a material change in circumstances with evidence and, therefore, the re- spondent's lack of own evidence is not an excuse, so to speak. The crux, however, leading to the re- duction in support rested with the volun- tary changes in circumstances on James Dean's part, namely, adoption of four children and buying a bigger home. What the Divisional Court stressed very strenuously is adherence to the first- family-first principal, meaning a person must govern his life with regard to the financial obligations he already has to his first family, and if a person doesn't, he does so at his own financial risk. On the topic of voluntary changes, the Divisional Court also goes on to discuss the notion that to be a material change for variation purposes, there has to be some reasonable rationale for the change. For example, in assessing the mater - iality, the Divisional Court looked at James Dean's options to have done things differently in the past (such as not adopt- ing the children and losing the child support payment, or not buying a big- ger home at a higher cost). The issue of materiality was in part determined on a reasonableness basis. I would certainly recommend this case to anyone practising family law as it provides a very thorough analysis of both evidentiary and legal issues at play in variation proceedings and it is cer- tainly a caution that people make future choices with due consideration of past and present support obligations. LT uMarta 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. The reality of wind power contracts BY GARTH MANNING R ural landowners who are approached to permit a wind turbine or turbines or as- sociated equipment on their acreage badly need sophisticated legal advice on these com- plex agreements. What happens too often, however, is that landown- ers simply tick the box in the documents presented to them that says they waive independent legal advice. As a public service, lawyers should change this prac- tice, and soon. Wind power projects are part of a policy for re- newable sources of power within Canada. In Ontar- io, many projects are already operating in rural parts of the province with an additional 600 megawatts scheduled to be added in 2017. More are planned for several other provinces, including Alberta and Sas- katchewan. Lawyers advising rural landowner clients consider- ing such agreements should be aware of the character- istics of these leases in order to advise clients appropri- ately. Often clients focus on the dollar amount offered by the developer without considering other important impacts of the agreement. Typically, the wind power proponent incorporates a subsidiary for each individual project. Its agents obtain turbine sites from farmers who have limited understanding of what they're being asked to do, which is to sign an Option to Lease many pages long; in this option may be a "further assurances" clause that obligates them, if the option is exercised, to sign a form of lease. That document, many more pages long, is by far the most lessee-friendly imaginable to any real property lawyer, experienced or otherwise. Those farmers badly need legal advice; local law as - sociations should emphasize this to their members. The corporate subsidiary accumulates as assets its Renewable Energy Approval, its contract with a government agency (in Ontario, the Independent Electricity System Operator) to supply power, the site leases and any agreements such as for road use with municipalities. It pledges them for its financing. Registered against title of the farmers' lands are notice of the lease (20 or more years), the pledge and possibly construction liens. All these assets can be assigned without consent; the assignee could be a corporation without resources and unable to fulfil the assignors' promises, includ - ing promises such as decommissioning industrial machines taller than the Peace Tower in Ottawa and that contain dangerous materials, in approximately 20 years' time. The lawyer should read every word of those two documents. He or she will then find that the farmer client is granting full access to the entire acreage at all times, and that the turbine(s) and access roads can be sited anywhere. They could also discover normal farm practices such as manure spreading could be affected, hunting might be prohibited and the ability to sell or finance the property will be affected because of the title regis- trations referred to above. They may even encounter a confidentiality clause that forbids any discussion of the arrangements and, even more specifically, avoiding liability for any adverse effects of turbines such as noise, vibration, effect on water wells and other effects of the power- generation equipment. The lawyer will also need to consider the client's exposure to being sued by neighbours for loss of prop- erty or business value and the loss of quiet enjoyment of their own properties because of the presence and operation of turbines. As well, lawyers need to consider that "further as- surances" clause obligating the client to sign just about anything the lessee needs, such as building per- mits. Even if an inadequate letter of credit is offered to ensure eventual demolition of the turbine, the farmer could be left holding the bag for the very substantial difference: industrial-scale wind turbines contain dangerous materials such as petrochemicals and rare earths, which require costly expert attention and disposal. The list goes on. The client may be unable to add an addition to the existing home because of the siting of a turbine, which only the lessee can decide. It may be impossible to sever part of the acreage to provide a separate home for a relative for example, a common practice in rural Canada. Each turbine requires some 50 truckloads of con- crete for its base; not only will these arrive at times possibly inconvenient or harmful to farming op- erations, but there is no guarantee that the concrete and underground transmission lines will ever be re- moved. During construction, the farm will be populated with workers and the massive equipment required to erect industrial machines of this size. It is likely that no regard will be given to custom- ary farming schedules, such as animal feeding or planting. Should the client sign the documents, in effect, he or she is affecting the use and viability of the property and any family plans for it for a minimum of 20 and perhaps as much as 40 years. From the Ontario experi- ence, we know that neighbours are rarely appreciative and old friendships often suffer. Many of us went to law school in the belief that law- yers help people in trouble. Here is a golden opportu- nity for lawyers to step up and provide the advice that is so badly needed. LT uGarth Manning is a retired lawyer with almost 50 years in practice in two jurisdictions, and a former presi- dent of Ontario Bar Association, now living in Prince Edward County. u SPEAKER'S CORNER Family Law Marta Siemiarczuk

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