From The Case Law: Tips for Family Lawyers and Mediators



Hilary Linton, Toronto Family Mediation Services (mediate393) and Riverdale Mediation

In a recent decision by Justice Kiteley on a motion by the Respondent for retroactive and ongoing child support inter alia,  several key principles emerged that are worth noting for mediators and lawyers alike.

Aside from the fact that the case features a lawyer with the last name Linton (no relation but always a good thing), here are some key take-aways:

  1. Litigants should use onsite mediation services. Judges can refer parties to mediation for the purpose of assisting the court and lawyers can ask them to do so. At mediate393, the agency referenced by Justice Kitely, the onsite mediators in the SCJ include skilled family lawyers who can help parties get their disclosure court-ready if nothing else. Do not overlook what this service can do for you.
  • Do not negotiate child support on a set-off basis if the facts do not permit it. S. 9 of the Child Support Guidelines is an exception to the mandatory rule that the full amount of table support, based on the payor’s income only, is payable. A reduced amount of support based on each parent’s income, setting off the lower amount against the higher amount, is only applicable if the child is residing at least 40% of the time with each parent. Notwithstanding the somewhat confused case law on how to calculate that 40%, there are relatively few cases of genuine uncertainty about whether the 40% threshold has been reached.
  • Where a parent’s income sources include self-employment , an analysis of the business expenses deducted against that income is necessary for accurate income determination. This can only be done with full disclosure including three years of income tax returns, full schedules and notices of assessment.

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