Redress Risk Management (post until May 31/19)
Family

Is a judge obligated to read all materials filed in a family law case?

By Lisa Gelman

The Ontario Superior Court recently considered the position of a father who was appealing a final child support order on the grounds that the motion judge who had granted the order had not read all of the materials that had been filed prior to making the decision about support.

The parties

The parties at issue are the biological parents of a daughter who is now almost 20 years old. They had never lived together or gotten married. Support had been paid by the father to the mother since the child was born, including for a number of expensive extracurricular activities such as horseback riding.

The father appealed a final order concerning child support and extraordinary expenses (including the horseback riding lessons, and university and tuition fees), and raised a number of grounds for his appeal, including the claim that original motion judge had failed to read the materials filed prior to the hearing, and had, therefore, brought the administration of justice into disrepute.

The motion judge’s review of the file

The court noted that the motions judge had admitted to only receiving the file on the morning of the child support hearing, and had, in her own words “not had an opportunity to review the materials in any detail.”

The court noted that while this may have been the case, it was “also clear” that the motion judge had taken the opportunity to listen to the arguments made by both parents and to consider the materials that were before her. In addition, she provided the parties with a detailed endorsement which included both her decision as well as her reasoning in reaching that decision.

The court went on to say:

A judge who acknowledges that she has not had an opportunity to read all the materials does not bring the administration of justice into disrepute. There is no merit to this argument and I reject it.

The other issues in dispute

The father had also claimed that the motion judge had erred in ordering him to pay $380 monthly towards the daughter’s horseback riding lessons and had likewise erred in ordering him to pay university tuition and other costs.

Horseback riding

While the father had argued that the amount he was paying for the riding lessons was disproportionately high when factoring in circumstances such as his income and that he would suffer hardship if he had to continue making these payments, the court ultimately disagreed for a number of reasons.

Firstly, there was no basis to unilaterally reduce the amount that he was paying in extraordinary expenses. Further, he had been paying this amount prior to a temporary reduction, which indicated that this was a reasonable contribution and should continue to be. Lastly, the “undue hardship” argument is a challenging one to succeed on, with a high test to meet. In this case, the motion judge had been aware of all relevant facts, including the father’s income, and concluded that the $380 was reasonable.

The father’s argument to lower this payment was rejected.

University tuition

The father had argued that:

  • the motion judge did not consider the daughter’s obligation to contribute to her own university education;
  • the daughter had unilaterally withdrawn from her relationship with him; and
  • the motion judge did not consider the obligation of the daughter’s step-father to contribute to her support.

The court disagreed on all of these points, noting that:

  • The motion’s judge had factored in the daughter’s responsibility to pay for part of her university expenses;
  • The daughter had never had a relationship with the father. As such, it could not have been her unilateral decision to terminate her relationship with him. Rather, the father made the decision not to have a relationship with her;
  • The stepfather and the mother are no longer living together. As such, there is no separate obligation on the stepfather to contribute to child support. Further, had the father wanted to pursue the stepfather for contributions to the daughter’s university tuition, he could have added the stepfather as a party. He chose not to do so.

This ground of appeal therefore also failed.

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