Support Orders and the Limiting Role of the OCJ

April 30, 2012 Hull & Hull LLP Estate & Trust Tags: 0 Comments

Under section 34(1) of the Family Law Act, RSO 1990, c F. 3, (the "FLA"), the Court is permitted to make interim or final orders pertaining to support obligations.  However, the Court’s power to make orders under subsection 34(1) is limited by section 34(2) which states, "The Ontario Court of Justice shall not make an order under clause (1)…(i), (j)…except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge…".

The FLA clearly attempts to limit the Ontario Court of Justice’s jurisdiction to make orders under s 34(2) unless one of the two exceptions are met in section 34(2).  It is worthwhile to explore how the court has interpreted these two exceptions.

The case of Baugh v. Samuels, 2001 CanLII 32833 (ON CJ), applies the ordinary dictionary definition to necessities.  At paragraph 48, Justice Heather L. Katarynych defines necessities as "…including not just things without which life cannot be maintained but things without which life is unduly harsh.  See the Concise Oxford Dictionary (7th edition, 1982)".  Justice Katarynych further goes on to explain that adequate medical coverage constitutes a necessity under the FLA.

With respect to when the section 34(2) exceptions are to arise, two conflicting judgments have been delivered.  In Martel v. Fortier, 1997 CanLII 11575 (ON CJ), Kukurin J. states at paragraph 37 of the judgment, "I can envision no situation in which the mere designation of a child as a life insurance beneficiary will immediately accomplish either of these objects.  It is clear that the intention of the subsection is addressed to the future".  Therefore, the section has been interpreted to focus on necessities and the dependent becoming a public charge arising in the future.  However, in Corbiel v. Corbiel, 1991 CanLII 4017 (ON CJ), the court seemed to follow differently, suggesting at paragraph 5 that, "…the words of the legislature cannot be interpreted to provide a form of security for necessities which, speculatively, may be required a lengthy time from now.  Although no authorities were cited to me, cases where such orders have been made involve needs and requirements of a much more imminent and emergent nature".  This seems to be contrary to the decision in Martel, as here, the Ontario Court of Justice is suggesting that necessities be imminent, and do not have to necessarily address future concerns.

As demonstrated in Corbeil and Martel, although the law is not entirely clear as to when the Ontario Court of Justice can flex their authority under s 34(2), the law is clear in allowing for beneficiary designations under life insurance and pensions to be used as a way to secure child/spousal support.  This is made clear under section 34(1)(i) and (j).  In the case of Laczko v. Laczko, 1999 CanLII 14998 (ON SC), the courts have gone so far as to require a payor spouse, who did not already have a life insurance policy, to purchase an insurance policy in order to secure child support payments.  This goes beyond the requirement of merely designating an existing insurance policy.

Ian Hull – Click here for more information on Ian Hull

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