Siegel's Family Court Calendar

“Mr. Zamani’s position is that if Ms. Zadeh receives 50% of the net proceeds of sale with the remaining net proceeds of sale to be held in trust, there will be insufficient funds to satisfy his EP and his equitable interest in the home he is claiming. Mr. Zamani relies on a number of cases where an interim sale of a matrimonial home have been deferred because a spouse’s rights in relation to property jointly held by a husband and wife are likely to be jeopardized. All of the cases relied on by Mr. Zamani are distinguishable from the case at bar because they deal with jointly-owned properties. In this case, the matrimonial home is in Ms. Zadeh’s sole name.

In the decision of Conforti v. Conforti, 2021 ONSC 1767 (CanLII), Chown, J. summarized the legal test applied in ss.12 and 40 applications as follows:

The Test

[27]      Under s. 12 of the Family Law Act, R.S.O. 1990, c. F.3, in an application for equalization or to resolve questions of ownership,

if the court considers it necessary for the protection of the other spouse’s interests …, the court may make an interim or final order,

(a) restraining the depletion of a spouse’s property; and

(b) for the possession, delivering up, safekeeping and preservation of the property.

For support applications, the court has similar authority under s. 40.

[28]      An early leading case interpreting s. 12 is Lasch v. Lasch (1988), 1988 CanLII 4581 (ON SC), 64 O.R. (2d) 464. Justice Granger said at para. 13:

The purpose of an order under s. 12 of the Act is to ensure that there are sufficient assets to make an equalization payment once the court determines such payment and makes an order under s.9 of the Act.

[29]      He said at para. 17:

A restraining order should be restricted to specific assets and there should be an onus on the party seeking the restraining order to prima facie show that he or she is likely to receive an equalization payment equal to the value of the specific assets.

[30]      In that case, the parties had run a joint line of credit up to its limit after separation. The husband had sold a property in his name and was intending to use the proceeds to buy a house. Justice Granger said he was “concerned, having regard to the past history of this case, that the ability of either party to satisfy an equalization payment will be impaired unless I make an order restraining the disposition and/or encumbrance of certain assets.” He made a preservation order accordingly.

[31]      In Batler v. Batler (1988), 1988 CanLII 4726 (ON SC), 67 O.R. (2d) 355 at para. 7, Justice Granger said:

If jointly owned property is sold prior to trial, prima facie the net proceeds of sale should be held in trust pending the determination of equalization to avoid prejudice to either spouse arising from the sale. If the parties agree or if there are sufficient assets to satisfy the potential equalization payment the funds could be dispersed.

[32]      In Bronfman v. Bronfman, 2000 CanLII 22710 (ON SC), decided 12 years later, the wife sought to extend a preservation order she had obtained on an ex parte motion. Justice Sachs applied the test applicable to a request for an injunction by considering: (1) the relative strengths of the parties’ positions; (2) the balance of convenience; and (3) whether irreparable harm may occur if relief is not granted. Paragraphs 26 though 31 of Justice Sachs’s decision are instructive. In particular, she says:

a court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. Under s. 12, the agenda is to protect the spouse’s interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial.

…

[31] …There are certain cases where the factual record, and the applicable legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor when deciding an interim application under s. 12, and perhaps less weight to the other factors. There are others where the facts and the law are disputed and complicated. … In such cases, the court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial. [Emphasis added.]

[33]      A more recent leading case is Taus v. Harry, 2016 ONSC 219. Justice Gauthier’s held, at para. 35, that the test under s. 12 or s. 40 is the same: “The question to be asked is whether there is a real risk that the applicant’s equalization claim and claim for retroactive support could be defeated if the preservation/non-dissipation order is not made.” In that case, equalization had not been determined, with each party saying the other would owe a significant amount. Specifically, the applicant said the respondent would owe her $130,000. Justice Gauthier found no evidence that the respondent was financially irresponsible, and “nothing to suggest that he would take steps to avoid any financial obligation he is ultimately determined to have” (Ibid., at para. 24). She accepted the respondent’s position that $200,000 should be paid out from trust, leaving just $46,400 each secured.”

Zadeh v. Zamani, 2023 ONSC 522 (CanLII) at 39-40

“The Convention creates certain exceptions to the mandatory return procedure for children wrongfully removed or retained. Those exceptions, contained in Articles 12, 13 and 20, were intended to be of limited scope. The Convention’s drafters envisaged a “restrictive” interpretation of these exceptions: see Elisa Pérez-Vera, “Explanatory Report” in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at para. 34. Similarly, Chamberland J.A. of the Quebec Court of Appeal in M.G. v. R.F., 2002 CanLII 41087 (QC CA), [2002] J.Q. No. 3568 at para. 30, said:

The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another.  However it is also, in my view, a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.

The exception at issue in the case at bar is contained in Article 13(a), which reads:

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced inthe removal or retention. [Emphasis added.]

I make two observations about this provision. First, it places the burden for establishing acquiescence on the person who opposes the child’s return – in this case, the mother. Second, whereas return of the child under Article 12 is mandatory where the court finds wrongful removal or retention, a court’s decision not to return a child because of the aggrieved parent’s acquiescence is a discretionary decision: where Article 13(a) applies, the requested state “is not bound to order the return of the child”.

In Katsigiannis v. Kottick-Katsigiannis (2001), 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), this court performed an in-depth analysis of Article 13(a) and decided to adopt the analysis of acquiescence set out in a House of Lords judgment by Lord Browne-Wilkinson: see In re H and others (Minors) (Abduction: Acquiescence) [1998] A.C. 72 (H.L.). This court’s conclusion was that acquiescence is a question of the aggrieved parent’s subjective intention, not one of the outside world’s perceptions of that intention (para. 48). Subjective intention can be demonstrated through conduct, but such a demonstration requires the abducting parent to show “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence” (para. 49). Moreover, to override the mandatory return mechanism, the acquiescence must be “unequivocal” (para. 49).

In her reasons, the motion judge referred to Katsigiannis and correctly summarized its holding. However, the motion judge went on to refer to the concept of “passive acquiescence,” which she said “occurs when the aggrieved parent allows enough time to pass without insisting on summary return.” She went on to conclude that “[w]aiting and permitting Andrew to become settled in Ontario and to establish roots with his mother and her extended family can only be the result of acquiescence on the part of the father.” [Emphasis added.] The four factual findings at the end of her endorsement follow a similar path of reasoning:

(i) there is clear and cogent evidence of unequivocal acquiescence;

(ii) the father’s conduct is inconsistent with the summary return of Andrew to Florida. He did not take immediate or even relatively immediate steps. He only brought the Hague motion in May of 2007;

(iii) there has been passive acquiescence on the part of the father i.e. enough time has passed without insisting on summary return;

(iv) acquiescence, in this case, can be inferred from the father’s conduct.

With respect, in my view the motion judge misapplied the concept of acquiescence set out in Article 13(a) and explained in Katsigiannis.

The eight-month delay between the mother’s failure to return Andrew on the September 29 return flight and the father’s commencement of Hague Convention proceedings cannot, without more, constitute acquiescence. The Hague Convention, under Article 12, allows aggrieved parents one year following the date of the wrongful removal or retention to apply for their child’s summary return, and to have the Convention’s summary return mechanism apply with its full force. Even after a year has passed, an aggrieved parent’s summary-return rights are not extinguished; the return mechanism is merely softened, with the abducting parent given the chance to override mandatory return upon proof that the child has “become settled in its new environment”: see Article 12. To infer acquiescence solely on the basis of delay where the application was filed within eight months is inconsistent with Article 12. Given Article 12’s one-year window, which is not even a strict limitation period, such delay cannot by itself constitute “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence”.

There are good reasons not to deny the aggrieved parent the one-year window provided by Article 12. The parent may initially be unaware of the Hague Convention and of the rights and remedies flowing from it. The parent may, as the father claims here, attempt reconciliation, or to otherwise settle the dispute outside the courtroom. Most importantly, such a broad interpretation of acquiescence is inconsistent with the purpose of the Convention, which is to secure the prompt return of abducted children, and with the correspondingly limited scope of the Convention’s exceptions.”

            Ibrahim v. Girgis, 2008 ONCA 23 (CanLII) at 22-29

“The Appellant argues that the Motion Judge erred in ordering ongoing support, given the principle against double dipping.

In  Boston v. Boston, 2001 SCC 43 at paras. 63 to 65 the Supreme Court discussed the concern about double dipping.  Justice Major for the majority expressed the principle that generally, in determining the quantum of spousal support, a court should focus on the portion of a payor’s assets that have not been equalized.  He did, however, sanction exceptions where the payor has the means to pay and the payee continues to suffer economic hardship from the marriage, or where the payee has a need for support.  In concluding that double dipping was not a factor in continuing support payments, the Motion Judge found that the Respondent had ongoing need for support and the Appellant had the means to pay.  His findings of fact support the application of the two exceptions articulated in Boston.”

            Dillman v. Dillman, 2021 ONSC 326 (CanLII) at 29-30

“The determination of whether to order an assessment pursuant to section 30 of the Children’s Law Reform Act is a highly discretionary one that requires the court to carefully consider all of the circumstances of the parties, their parenting, their overall functioning and well-being and the particular needs of the child before the court.  Ultimately, the question to be determined by the court in a motion for a section 30 order is whether the court requires additional assistance from a qualified professional to determine the needs of the child before the court and the ability and willingness of the parties to satisfy those needs.

The caselaw outlines numerous factors that may be relevant in guiding the court’s discretion in deciding this basic question, but ultimately, the decision must turn on the unique facts of every case.

As I have indicated, the Applicant relies on the case of Glick v. Cale, 2013 CarswellOnt 1409 (S.C.J.) as setting out the relevant factors and considerations, and that case does indeed provide valuable guidance.  In addition to that case, I have considered the decisions in Baillie v Middleton, 2012 ONSC 3728 (S.C.J.); Hutchison v. Peever, 2021 ONSC 4586 (S.C.J.); Joseph v. Molnar, 2021 ONSC 4432 (S.C.J.); McDonald v. McMullen, 2021 ONSC 1001 (S.C.J), and Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.).  In addition, I note that a reading of section 30 as a whole reflects that the section contemplates that the information provided by an assessor will essentially amount to expert opinion evidence respecting the needs of the child and the ability and willingness of the parties to meet those needs.  Accordingly, the factors relating to the admissibility of expert opinion must also be brought into the fold of the analysis in deciding whether to order an assessment under section 30.

Based on the caselaw respecting section 30 and the admissibility of expert opinion evidence, I conclude that the relevant principles, factors, and considerations on a motion for a section 30 assessment include the following:

1. 1. 1. 1. First, drawing from the law respecting expert evidence, before ordering a section 30 assessment, the court should be satisfied that the proposed assessment is likely to provide the court with evidence that is relevant to the parenting issues in the case, and that it will be necessary to assist the trier of fact.  Mere helpfulness of the proposed assessment does not satisfy this threshold (Fortier v. Oliver,2003 CarswellOnt 5397 (S.C.J.), and Baillie v Middleton).  Rather, necessity involves the court being satisfied of at least one of the following:

a.  The expert’s opinion will provide information that is likely to be outside of the experience or knowledge of the judge;

b.  The assessor’s opinion is likely to be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature or dimensions; or

c.  The matter in issue concerns something that ordinary people are unlikely to form a correct judgment about without assistance of the person with special knowledge.  In other words, the trier of fact is unable to draw their own inferences and conclusions about the issues in question based on the facts presented without the help of the proposed assessor (White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23 (S.C.C.)).

1. 1. 1. 2. The onus is on the moving party to satisfy the court that the proposed assessment is likely to provide the court with relevant evidence that is necessary to assist the trier of fact.
         3. The section 30 caselaw to date has focused extensively on whether there should be clinical issues involved in a case before an assessment is ordered.  However, it is more appropriate, in my view, to focus more broadly on the question of whether the proposed assessment is likely to be relevant and necessary in determining the parenting issues in the case within the meaning discussed above, whether because there are issues of a clinical nature or otherwise.  The existence of complex clinical issues that are likely beyond the knowledge and experience of a judge to process and apply properly to the facts of the case is but one reason why a section 30 assessment may be necessary.
         4. In determining whether the assessment is necessary to assist the trier of fact, the court should consider all of the family’s circumstances, including the overall dynamics and the needs of the child.  The list of factors enumerated by Kitely, J. in Glick v. Caleas being relevant to determining whether a section 30 assessment should be ordered is a helpful, non-exhaustive outline of some of the factors that the court should consider in deciding if the assessment is necessary.  These factors include the following:

 

a.  What was the parenting relationship like before separation?  Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b.  Are the parents unable to make any decision about the child’s needs without intervention by a court?

c.  Is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d.  Do the parents have a mutual disregard for the other parent’s ability to parent?

e.  Do the parents blame each other for the dysfunction each describes?

f.  Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g.  Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h.  What is the age of the child at separation and at the time of the request for the assessment?

i.  Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j.  Is there an alternative?  For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the Office of the Children’s Lawyer to become involved and appoint a lawyer to act for the child?

k.  Are there other challenges in the family, and if those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l.  What is the nature of the issues that the court must decide? and

m.  Is an assessment in the best interests of the child?

1. 1. 1. 5. Turning to the 5^thgeneral principle, the assessment should not be ordered if the court is satisfied that it will be in a position to reasonably decide the issues with all of the currently available evidence, including that of professionals who have already been involved with the family (Kramer v. Kramer, (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5^th) 381 (Ont.S.C.J.), and Baillie v Middleton).  If the evidence that the moving party states is required from the proposed assessor is already readily available from other potential witnesses and professionals without the assistance of an assessment, then the assessment should not be ordered (Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.), at para. 30).
         6. The court must be satisfied that the proposed assessor is qualified to identify and assess the needs of the child in question and the ability and willingness of the parents to address their needs (White Burgess).
         7. Assessments are not to be ordered routinely as a convenient means of promoting settlements of custody disputes (Linton v. Clarke, (1994), 1994 CanLII 8894 (ON SCDC), 10 R.F.L. (4th) 92 (Ont.Div.Ct.); (Baillie v Middleton).  Furthermore, they should not be ordered simply as a means of gathering all relevant available information from other potential witnesses together within the knowledge of one professional for the purpose of relaying the information to the court.  Necessity goes beyond organizing other readily available evidence to present it to the court in a comprehensive and cohesive manner.
         8. The mere fact that the parties are engaged in a high conflict parenting dispute does not in itself, justify ordering an assessment (Baillie v Middleton).
         9. The potential benefit of expert assistance in a particular dispute must be weighed against the fact that assessments are expensive, intrusive, and time-consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that could be incurred by ordering the assessment (Butler v. Percy2009 CarswellOnt 4523 (S.C.J.); Hodgson v. Hanson 2000 CarswellOnt 3769 (O.C.J.); Johnstone v. Brighton 2004 CanLII 5851 (ON SC), 2004 CarswellOnt 3229 (S.C.J.), and Baillie v Middleton).
         10. In weighing the potential benefits of an assessment against the possible prejudice of an assessment, the court must consider whether the child in question has already been exposed to a great deal of stress, disruption, and exposure to professionals.  As Pazaratz, J. stated in Baillie v Middleton,an assessment is intrusive not only for the parents but also for children.  Accordingly, the court must consider whether a further investigation will have a negative impact on a child by drawing them further into the parental conflict in a court case (Root v. Root, 2008 CarswellOnt 3995 (S.C.J.); Baillie v Middleton).
         11. The court should also consider whether concerns about any delay involved in obtaining the assessment will outweigh any potential benefits of obtaining the assessment.  As Pazaratz, J. emphasized in Baillie v Middleton,where the parties are so entrenched and unyielding in their respective positions that nothing short of a trial will resolve the case, a marginally beneficial assessment should not be allowed to delay that final resolution. The issue to consider is whether the assessment will cause delay that is not in the best interests of the child.  In considering the impact of delay, the court should consider whether it is more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamics and arrive at a resolution without a trial.
         12. An assessment should not be used as a general fact-finding exercise by one parent hoping to obtain evidence favourable to their position (Haggerty v. Haggerty, 2007 ONCJ 279 (O.C.J.), at para. 7; M.(D.M.) v. L.(D.P.) (1999),1999 ABQB 37 (CanLII), 44 R.F.L. (4^th) 433 (Alta. Q.B.); Baillie v Middleton).
         13. The cost of the assessment will also be an important consideration, although not necessarily determinative.  However, in addressing the cost issue, the court must also weigh the potential for the assessment assisting the parties to resolve the issues in dispute and to avoid the cost of further litigation and a trial (Baillie v Middleton).
         14. The need for neutral and independent evidence about the views and preferences of the child may provide support for ordering a section 30 assessment.  However, where these views and preferences are readily available through other independent witnesses and/or professionals, the court may conclude that further evidence is unnecessary, and that the appointment of an assessor to address this point is not required.”

A.A. v. D.S., 2022 ONSC 1389 (CanLII)

“Having reviewed the relevant legislation and caselaw I find that the Court lacks the requisite jurisdiction for the following reasons:

a.   A foreign support order that is properly made and is in full force and effect is not only relevant but is binding upon the parties. As a matter of public policy there should not be two outstanding support orders: Sun v. Guilfoile, 2011 ONSC 1685, 105 O.R. (3d) 439. A child support order in Ontario creates two competing orders.

b.   It is well established that, generally speaking, a court cannot vary a corollary support order contained in a foreign divorce under the Family Law Act.This is logical for a variety of reasons as set out in the caselaw. The only mechanism to make such a variation is pursuant to the interjurisdictional support statutes: Rubio v. Joslin, 2018 ONCJ 167, at paras. 43-45, citing Rothgeisser v. Rothgeisser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577 (Ont. C.A.) and Okymansky v. Okymansky, 2007 ONCA 427, 86 O.R. (3d) 587. Given that the Court cannot vary a federal child support order by Ontario legislation in accordance with the principles of paramountcy, one ought not be able to vary a child support order contained in a foreign divorce judgment by provincial legislation.  The Court should be respectful of orders made by foreign courts (as per the notion of comity).

c.   In the leading Ontario Court of Appeal case of Cheng v. Liu, 2017 ONCA 104 the court permitted the adjudication of child support where there was no existing foreign divorce order incorporating provisions for child support.  This decision has been considered approximately 27 times since its release in 2017.  The cases below provide certain instances/exceptions where the Court may make an order for child support in accordance with the Family Law Act, even though there is a valid foreign divorce order.  The first three instances/exceptions clearly do not apply for the following reasons:

i.   The foreign divorce is silent as to child support.  The Ontario Court has the jurisdiction to make an original order for child support: See e.g., Zeineldin v. Elshikh, 2020 ONSC 1160, at para. 15.  This approach follows Cheng v. Liu.

ii.   The jurisdiction that issued the foreign divorce (with child support provisions) is not a reciprocating jurisdiction under the ISOA. The Ontario Court has the jurisdiction to make an original order for child support.  The Unites States is a reciprocating jurisdiction: Rubio,supra.  This exception does not apply.

iii.      There is flagrant non-compliance with the existing order for child support as contained in the foreign divorce: Krause v. Bougrine, 2022 ONCA 161, 468 D.L.R. (4th) 53.  Not only has the father fully complied with the Divorce Judgment, he is in compliance with the Bird J. without prejudice order for increased child support and 80% of the child’s section 7 expenses.  This exception does not apply.

iv.   The fourth instance/exception to the limits imposed in Cheng v. Liuwas considered by Diamond J. following a review of various cases (that were decided both before and after the Court of Appeal decision).  In summary, where there has been a material change in circumstances leading to a legitimate claim for custody and access in Ontario, and where the Court is satisfied that a foreign order for custody and access should be superseded, the issue of child support can arise anew.  However, the parenting time claims cannot be a tactic to establish jurisdiction to claim child support or an attempt to forum-shop as a means to obtain a better order than that contained in the foreign divorce.

v.    In Leavens v. Fry, the Court found that the mother’s decision not to relocate to Ontario, in contradiction of the consent terms of the foreign divorce, required new provisions for parenting and child support.  The agreement that no child support would be payable by either party was premised on all family members moving from Connecticut to Ontario, and a shared parenting schedule.  A material change in circumstances had taken place since the issuance of the foreign divorce order and the subsequent relocation order (that permitted the move in the absence of the mother’s consent).  The new circumstances cried out for a variation of the terms contained in the foreign divorce.  Diamond J. found that the Ontario Court had the requisite jurisdiction to make an original order for child support: Leavens v. Fry, 2020 ONSC 5077. Given the facts of that case the father had a viable claim for child support in the face of a foreign divorce that specifically provided for no support.

It is tempting to find that this exception applies here. There are parenting claims before this Court and such a finding avoids the need to have a second proceeding by ISOA. However, the mother’s claim for supervised access is disingenuous. The child has not attended access (supervised or otherwise) since August 2016. The father’s primary parenting claim is to enforce the terms of the Divorce Judgment.

The facts of this case are distinguishable from Leavens v. Fry.  From the time of separation onwards the mother has always had primary care of the child in Ontario.  The Divorce Judgment provisions for child support are premised on same, and the amount payable is approximately $2,282 per month.  The father has always resided in the United States and has been consistently clear that he wants a relationship with the child.  The Divorce Judgment contemplated regular parenting time.

The absence of a meaningful relationship between father and child likely relates to some combination of the mother’s refusal to make the child available for parenting time, the child’s subsequent refusal to have contact with the father, and historical issues with the father/child relationship.  Problems with the father’s ability to exercise parenting time existed in 2011, and continue today.

The Section 30 parenting assessment recommended a continuation of the joint major decision-making, and parenting time in accordance with the child’s wishes.  The assessor did not support the mother’s request for supervised access.  Dr. Radovanovic expressed hope that the child would be open and receptive to a relationship with her father and family in the future.

Both parties agree that aside from child support (which is a significant issue) there is little, if anything, in dispute.  The father’s lack of parenting time (which he neither supports nor desires) does not “cry out” as a reason to permit the mother to seek a change to the child support in the face of a foreign divorce order.

I find that the fourth instance/exception does not apply.

   Other than as set out above, where child support is included in a foreign divorce order any variation must proceed in accordance with ISOA.  While it is true that the ISOAis not obligatory where parties wish to vary terms of a separation agreement, no other option is available in Ontario where there is a foreign divorce incorporating child support terms.”: Virani v. Virani, 2006 BCCA 63, 52 B.C.L.R. (4th) 112, cited and distinguished in Jasen v. Karassik, 2009 ONCA 245, 95 O.R. (3d) 430.

            Taimish v. Al-Kadhimi, 2023 ONSC 378 (CanLII) at 26

“What’s in a name?

A child’s name, given to him or her, by both parents, is fundamental to the child’s identity, who he or she is and who he or she will become.  “In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification”:  Belisle v. Pool, (1994) 1994 CanLII 7487 (ON SC), 111 D.L.R. 717 (Ont. Ct. Gen. Div.), at para. 37.”

          Tansley v. Dikianidis, 2024 ONSC 212 (CanLII) at 1-2

“Before further analyzing the issue, I note that I raised with counsel the fact that the parties’ marriage lasted only about 3.5 years. I questioned whether that fact in itself may be sufficient to reduce the Applicant’s claim for equalization in light of s. 5(6)(e). That provision allows a court to consider unconscionability within the context of “a period of cohabitation that is less than five years”. Having received the Applicant’s submissions, I am satisfied that the provision looks to a period of cohabitation, not marriage: Pope v. Pope, 1999 CanLII 2278 (ON CA), [1999] O.J. No. 242; 170 D.L.R. (4th) 89 (Ont. C.A.), at para. 32; Janjua v. Khan, 2013 ONSC 44, at para. 60. Here, the period of cohabitation was seven years, including the cohabitation during marriage. Thus s. 5(6)(e) does not apply to diminish the Applicant’s claim to equalization or unequal division of the parties’ NFPs.”

            Daciuk v. Daciuk, 2023 ONSC 70 (CanLII) at 22

“The term “parent” is defined in Part V, CHILD PROTECTION, Section 74(1) of the CYFSA.  For the purposes of this proceeding, the relevant portions are as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. 1. 1. 1. 1. 1. 5. An individual who has lawful custody of the child.
                  6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

Counsel for J.A. refers to the Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Succession Law Reform Act to illustrate the various tests that are applicable in determining a non-biological person’s rights and obligations to a child.

Counsel for J.A. alleges that as J.A. is a stepfather of A.H.H. and consequently has rights as applicable under the Divorce Act and in the Children’s Law Reform Act. Counsel for the mother submits that the term “settled intention” is akin to the term being found in “loco parentis”.

As this is a child protection matter, I find that the appropriate definition of “parent” in Section 74(1) of the CYFSA is the applicable test.

I find J.A. must provide prove, on a balance of probabilities, that he has demonstrated a settled intention to treat A.H.H. as his own in the 12 months prior to the commencement of the child protection proceedings or that he had lawful custody.

I accept that the decision to declare J.A. a “parent” within section 74(1) of the CYFSA is discretionary and the court must consider all of the relevant factors on the facts of each case in exercising that discretion.

I agree with the position of the CAS that the issue of settled intention was addressed by the court in a 2002 decision in Children’s Aid Society of Haldimand-Norfolk v A. (LM) 2002 CanLII 78100 (ON CJ), 33 RFL (5th) 54. I agree that the factors set out by the court in paragraphs 16 and 17, although under the previous legislation, is applicable under the current legislation including:

1. 1. 1. 1. 16. The overriding onus rests with the applicant the Society. Intention is in dispute and therefore, individual facts of this individual case require that it be dealt with its own merits. The Society must show more than a conduct of common courtesy or hospitality on the part of the respondent Mr. Robert A. The facts of family life established by evidence must show a pattern of responsibility for the child by the parent arising out of a demonstrated settled intention consciously formed and firmly established. The onus to rebut an existing settled intention rests with the respondent Mr. Robert A. and it is a heavy one. See Spring and Spring, supra, and Cassar-Fleming v. Fleming(1996), 1996 CanLII 19729 (ON SC), 20 R.F.L. (4th) 201, [1996] OJ No 675, 1996 CarswellOnt 789 (Ont. Gen. Div.).
            17. Here, the length of cohabitation in a shared residence, common surname, responsibility for all expenses over a lengthy time, and a history of Children’s Aid Society material showing shared parenting for Amelia Rose E. — all show a long-term commitment to Amelia Rose E. by the respondent Mr. Robert A.’s demonstration of a settled intention to treat her as a member of his own family. The onus with respect to the Children’s Aid Society case is met and the fact of settled intention is not rebutted by the respondent Mr. Robert A.

In Spring v Spring [1987] OJ No 2655, the court considered various factors in determining settled intention, including the place where the child live, the manner in which expenses of the child were discharged, the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled” denoted quality and not duration and once settled intention has been demonstrated, a change in that intention does not negate the obligation of support.”

Children’s Aid Society of Ottawa v. E.V.B.H. et J.A., 2024 ONSC 891 (CanLII) at 21-28

“In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:

Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.”

          A.P. v. L.K., 2021 ONSC 150 (CanLII) at 211

“When income is imputed to make the original support order, the Supreme Court stated in Colucci at para. 63:

         [63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).”

Tyndall v. Tyndall, 2022 ONSC 131 (CanLII) at 67