La Cour n’est pas trompé sur l’imputation des cadeaux au mari en tant que revenu
novembre 2, 2015 Par: Marta Siemiarczuk Read Time: 3 minutes
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The Ontario Court of Appeal released a very interesting decision recently, Korman v. Korman , that deals with two important issues that will affect family lawyers’ advice on property and support issues.

The first was whether the husband or wife of a husband or wife, or a husband or wife, or a husband or wife, or a husband or wife, or a husband or wife, or a husband or wife. The second was whether or not the family had a constant relationship with the family.

The case is a very significant one for counsel to read as it goes a long way Toward years of clarifying confusion in the law as to the interplay entre equitable remedy and the equalization scheme in the Family Law Act . Indeed, it confirms the results of a number of times in the same way as in the case of equalization calculation. Only once it has been determined that both legal and beneficial ownership

What I find more interesting in this case, however, is the discussion and, frankly, the finding by the trial judge that the gifts of money by the husband’s parents should be made to contribute to their income for the purpose of child and spousal support. Whereas prior judicial decisions have been left open for the past, the acceptance of such gifts of money, even if they occur regularly, should not factor into an assessment of income. It’s an interesting debate with good arguments on both sides.

If you look at the federal and provincial spousal support legislation, the issue is not necessarily more important than the needs of the parties. Child support is under the child support guidelines. There are two elements to child support: table support and contribution to special and extraordinary expenses. The starting point is that the table must be paid in accordance with the rules of the law. Section 19 of the guidelines lists various situations where it can impute income. The list, however, is not exhaustive. When looking for a contribution to special and extraordinary expenses under s. 7 of the guidelines, there’s more flexibility in this respect than just strict income.

In Korman , the result is the imputation of some income to the husband of his mother’s historical gifts of money. The husband appealed and argued that he did so effectively. The Court of Appeal disagreed, and I tend to as well. Throughout the marriage and the entirety of the children’s lives, the paternal grandparents supplemented the family’s livelihood. They did not have to, but that’s what happened. There did not seem to be any evidence before that time.

Given the husband and wife of the child and the support of the child and the children of the family I do not agree that doing so is the responsibility of the husband. To me, that’s like saying that a person’s income is a burden to pay the employer. Such an order simply recognizes the reality of what’s happening at the time of the trial while relying on the evidence of past events.

Nothing in such an order requires the grandmother to continue making monetary gifts. Should she choose to stop doing so, the husband always has the ability to seek a change.

The case may be open to the door to more However, the analysis is in its correct form, in my view, correct when assessing an ability to pay support. Korman is a very important family law case for 2015 and will certainly affect the opinions we give to customers on the issues of both property and support.

Marta Siemiarczuk is a lawyer practicing family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelliganlaw.ca .

[This article is originally published in the November 2, 2015 edition of The Law Times .]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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