The distinction between a review and a variation of support has repeatedly been confounded by both counsel and judges in the family law court. While a variation requires meeting the threshold requirement of a ‘material change in circumstances’, a review, or hearing de novo, is similar to an initial application. This distinction will affect the preparation and arguments necessary for parties to be successful at such a hearing. In Verkaik v Verkaik,[1] the Divisional Court has reiterated the difference between the two types of proceedings; this time within the context of insufficient financial disclosure by the respective parties.
In Verkaik, the parties entered into Minutes of Settlement on the eve of trial. The Minutes dictated that the father would pay $725 in non-variable, monthly child support for three years, at which time either party could apply for a review. This amount was determined based on the father’s approximate income of $80,000 and the mother’s income of zero. Five years later, the father applied for a review and change of his support payments, on the basis that he believed that his obligations should be reduced or terminated altogether.
The trial judge found that there was insufficient evidence to determine the income of either of the parties. Significantly, he questioned the accuracy of the applicant father’s evidence, given his significant assets and extravagant lifestyle. In light of the deficiencies with the financial disclosure, the trial judge declined to make any findings about income and instead ordered that the prior child support payments pursuant to the Minutes of Settlement were to be continued. He made no findings of fact as to the income of either party.
On appeal, a unanimous Divisional Court panel held that a review, as was required in this case, necessitated findings of fact regarding the parties’ respective incomes. Referring to the Supreme Court of Canada decision in Leskun v Leskun,[2] the Divisional Court reiterated that a review, unlike a variation, does not require the party to demonstrate a material change in circumstances, but rather, is “equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum.”[3] The relevant evidence must be assessed to determine the “entitlement, form, duration and quantum of the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies.”[4]
Therefore, the Divisional Court held, the trial judge ought only to have ordered the father to continue paying $725 per month if he had also made contemporary findings of fact that the father’s income remained $80,000 and that the mother’s income was zero.
Interestingly, the Divisional Court took the analysis one step further, suggesting that it was within the trial judge’s power to have insisted that the parties produce “other collateral sources of information such as personal bank and credit card statements from which lifestyle and patterns of expenditure (and therefore available income) might be derived.”[5] Trial judges are regularly faced with inadequate, and sometimes even misleading, financial disclosure by the parties. To address this concern, the Divisional Court emphasised the authority of trial judges, codified in sections 15 to 20 of the Child Support Guidelines[6] to impute income where the payor has failed to provide sufficient financial disclosure regarding their income.
The Divisional Court sent the matter back to be re-tried.
Verkaik is valuable for its reiteration of the principles applicable to a review application. It serves as an important reminder to counsel and litigants alike to come to a review hearing prepared to litigate the fundamental issues of support as though they were being argued in an initial application. Good preparation will require proper financial disclosure to support all of the elements of the parties’ respective positions on support, including entitlement, form, duration and quantum.
[1] 2020 ONSC 7993.
[2] 2006 SCC 25.
[3] Ibid at para 21.
[4] Ibid at para 22 [emphasis added].
[5] Ibid at para 25.
[6] O Reg 391/97.
