Appeal Asks Whether Judge Has To Read All Material Presented At Trial

Written on behalf of Arbesman Hamilton LLP

When going through a case before the courts, one might expect a judge to be paying close attention to the facts presented to them. And while that’s usually the case, there appear to be some exceptions. In a recent case before the Ontario Superior Court of Justice, the court had to decide what to do when it was found that the judge hearing a case about child support  didn’t read the material presented to her.

Straightforward facts

The facts of the case were fairly straightforward. The couple involved were parents of a girl who was nearly 20 years old. The couple had never married, nor had they ever lived together. Support had been paid by father since the child was born. The matter before the courts was in regards to child support and the payment of extraordinary expenses; in this case, horseback riding lessons.

The outcome of the trial involved the father having to pay one-third of the child’s university tuition as well as $380 per month for horseback riding lessons.

The father appealed on a number of grounds, some of which make for an interesting read.

Extraordinary Expenses for Horseback Riding

The child was a longtime, high-level participant in horseback riding. The father had originally been paying $380 per month towards the lessons before unilaterally changing the payment to $180. When asked by the judge why he had done this, the father replied that the amounts payable for horseback riding were disproportionately high when accounting for the circumstances, particularly his income. It was his position that having to pay $380 per month would cause him to suffer hardship.

The court rejected this ground for appeal for a few reasons. The first was that the father had no authority to unilaterally change the amount he was paying. Secondly, “the amount that he was paying previously is a prima facie indication of what his reasonable contribution to those expenses should have been and should continue to be.” The third reason was in regards to the father’s undue hardship argument. After noting the test for undue hardship is a high test to meet, saw no indication the judge did not consider the relevant facts, such as the father’s income and the cost of horseback riding when issuing her decision.

Support for a Second Child

Another of the father’s reasons at appeal was that the judge did not consider that he also paying child support in the amount of $300 per month for another child. The court was short in its rejection of this ground of appeal, stating the total amount of child care ordered for each of his two children still leaves him with less than $12,000 in annual payments, falling below what would constitute a need to lower the payment amounts.

Failing to Read the Materials

This ground for appeal is the most interesting of the bunch. The father argued that the judge, having not read the evidence put towards her, brought the administration of justice into disrepute.

The judge had only received the file the morning of the hearing. In her own words, she stated she had “not had an opportunity to review the materials in any detail.” The evidence also indicated the judge had taken the opportunity to listen to the arguments made by the parties and to consider the evidence before her. Her decision was also detailed, outlining her decisions as well as her reasons for making them. For these reasons, the court ruled “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.”

Child and spousal support disputes can be the most contentious aspects to a separation or divorce. The lawyers at Arbesman Hamilton LLP take a pragmatic approach to family law issues, including child support. We encourage our clients to focus on the big picture, and determining which goals are most important to them for the end of the process. We keep affordability in mind and avoid unnecessary actions and the costs associated while also protecting our clients’ rights and interests. Please contact us online or call us at 416-481-5604

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