Siegel's Family Court Calendar

“Bruce’s specific objection to the amended pleading in this case is that the claim for retroactive child support for NRL is “untenable in law” because NRL is no longer a “child of the marriage”. It is therefore necessary to briefly review the legal principles relevant to this issue.

Section 2(1) of the Divorce Act defines a “child of the marriage” as follows:

a child of two spouses or former spouses, who, at the material time,

(a)      is under the age of majority and who is not withdrawn from their charge, or

(b)     is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessary necessaries of life. (emphasis added)

In DBS v. SRG, the Supreme Court of Canada determined that the “material time” for purposes of seeking retroactive child support awards is the time at which the application is made. In other words, DBS holds that courts have jurisdiction to make original orders for child support only where, at the time of the application, the child beneficiary is still a “child of the marriage”. The Supreme Court observed that limiting jurisdiction to make child support orders in this manner reflects the principle that adults (i.e. those over the age of majority and not dependent) are not the type of persons for whom Parliament envisaged child support orders being made. In the Court’s view, child support is for children of the marriage, not adults who used to have that status.

In its recent decision in Michel v. Graydon, the Supreme Court expressed a willingness to reconsider this aspect of DBS. In her concurring judgement in Michel v. Graydon, Martin J. expressed the view that the “jurisdictional bar” on original orders for child support established by DBS has led to divided and confused jurisprudence and undermined the Divorce Act’s objectives of clarity, certainty and consistency. In Martin J.’s view, the “deleterious effects on access to justice and the relationship between child support underpayment and poverty canvassed above reveal the profound unfairness visited upon children and their custodians by this bar.”

The majority judgement of Brown J. recognized that unjust results can flow from imposing impediments that prevent otherwise deserving parents from seeking retroactive child support. He therefore agreed with Martin J. that the Court’s interpretation in DBS of the “material time” for purposes of determining jurisdiction to order retroactive child support under the Divorce Act might merit reconsideration. However Brown J. was also the view that deliberations on this issue would benefit from fulsome submissions directly on point. Because the appeal in Michel v. Graydon could be decided on the basis of provincial legislation alone, Brown J. found it unnecessary to undertake any such reconsideration of DBS at this time.

In the result, while the jurisdictional limitation on ordering retroactive child support for adult children established in DBS has by no means been overruled, all nine judges of the Supreme Court of Canada have expressed doubts over the correctness of the limitation and indicated an openness to reconsidering the issue. Thus, in light of Michel and Graydon, there are now serious questions as to whether DBS’s holding that child support can only be ordered for support beneficiaries who are still “children of the marriage” remains settled law.”

            Pennington v. Pennington, 2021 ONSC 7371 (CanLII) at 16-21

“The capacity requirements to give a Power of Attorney for Property are set out in s. 8(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”):

(a) knows what kind of property he or she has and its approximate value;

(b)  is aware of obligations owed to his or her dependents;

(c)   knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the restrictions set out in the power of attorney;

(d)  knows that the attorney must account for his or her dealings with the person’s property;

(e)  knows that he or she may, if capable, revoke the continuing power of attorney;

(f)   appreciates that unless the attorney manages the property prudently, its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

The capacity requirements to give a Power of Attorney for Personal Care are set out in s. 47(1) of the SDA:

(a)   has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b)   appreciates that the person may need to have the proposed attorney make decisions for the person.

Suspicious circumstances surrounding the preparation of the POAs, the capacity of the grantor, or undue influence shift the burden of proof to the grantee: Stewart v. Zawadzinski, 2023 ONSC 387, 87 E.T.R. (4th) 99, at para. 44, citing Nguyen-Crawford v. Nguyen, 2010 ONSC 6836 (CanLII), 2010 ONSC 6826, 71 E.T.R. (3d) 55, at para. 85.”

Lewicki v. Bascus et al., 2025 ONSC 6224 (CanLII) at 53-55

“The essential components of a valid gift are: a) an intention to make a gift; b) acceptance by the donee of the gift; and c) a sufficient act of delivery or transfer of the property to complete the transactions: McNamee v. McNamee, 2011 ONCA 533 (CanLII), 2011 ONSC 533, 106 O.R. (3d) 401, at para. 25.

Where a transfer of property is gratuitous between a parent and adult children, there is a presumption of resulting trust. The onus is on the recipient adult children to rebut the presumption. They must prove the donor’s intention to make the gift on a balance of probabilities: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44.

In Foley v. McIntyre, 2015 ONCA 382, 125 O.R. (3d) 721, at para. 26, the Ontario Court of Appeal explained the application of the resulting trust principle as follows in the context of gratuitous transfers by parents to their adult children:

Equity presumes bargains, not gifts. Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent: Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at para. 36. The onus shifts to the adult child to rebut the presumption by proving the contrary intent on a balance of probabilities: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada (2014), 119 O.R. (3d) 81, [2014] O.J. No. 573, 2014 ONCA 101, at paras. 56-57; Mroz (Litigation guardian of) v. Mroz (2015), 125 O.R. (3d) 105, [2015] O.J. No. 1284, 2015 ONCA 171, at para. 72. The trial judge must begin her inquiry with the presumption and then weigh all the evidence in an attempt to determine the parent’s actual intent at the time of the transfer: Pecore, at para. 44; Sawdon, at para. 57; Mroz, at para. 72.”

Strauss v. Wright, 2021 ONSC 5411 (CanLII) at 43-45

“In his Reasons, the Arbitrator stated, at paragraph 3.8, that he addresses each of the issues in separate sections, but that they are in no order of priority or importance.  Nonetheless, in paragraph 13.1, the Arbitrator states, “Having dealt with the financial support for Abbey and for the children, the next important issue to determine, surrounds the division of property.”

The Arbitrator’s approach is an error in law.  When determining support under s. 15.2(4) of the Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.), the court is to look at the party’s means, which includes all pecuniary assets.  The amount of equalization to which a party is entitled, and the impact of any income-generating potential associated with the assets retained by the parties, will affect a support analysis: Greenglass v. Greenglass, 2010 ONCA 675 at paras. 40-42; Leskun v. Leskun, 2006 SCC 25 at para. 29.

Accordingly, issues of property should be determined first.  It also eliminates the risk that a payee’s ability to become economically independent is considered twice:  Hartshorne v. Hartshorne, 2004 SCC 22 at para. 56.”

            Le v. Nguyen, 2022 ONSC 6265 (CanLII) at 38-40

“Devaluing or minimizing a parent by the other in a child’s life, even subconsciously, can amount to parental alienation. It “is a legal concept as opposed to a mental health diagnosis”: Malhotra v Henhoeffer, 2018 ONSC 6472 at para. 107. In Bors v. Beleuta, 2019 ONSC 7029 at para. 119, Van Melle J. approved of the following definition of parental alienation described by Dr. Michael Stambrook in the Manitoba case of L.M.A.N. v. C.P.M., 2011 MBQB 49:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on…

So parental alienation is a process, an interactional process where systematically one parent’s role in, for the children is eroded over the course of time. (bolding added)

Delay is a significant, troubling factor in this case, too. Almost five and a half years passed between the time that the parties separated in December 2015 and the start of this trial in May 2021. For three and a half years the children’s time with their father was restricted by the mother and, sometimes, arbitrarily ended or changed until this case began and an Order was made by McGee J. in June 2019 giving the father greater parenting time. While the parties are to be commended for their serial mediation efforts, it should have been clear to them well before February 2019, to the father in particular, that far more urgent and definitive action was needed. The risk to young children is clear where meaningful time with the other parent is impeded and the child/parent relationship is unsupported. It is good that the children’s time with their father was increased after this case started but, as the father pointed out, that only happened as a result of the recommendations contained in the OCL report.

In L. (A.G.) v. D. (K.B.), 2009 CarswellOnt 188, McWatt J. (as she then was) dealt with the concept and qualities of alienation influence and its effect on families.

Dr. Fidler testified that children are more susceptible to alienation in certain age ranges. She explained that from 5 to 8 years of age, children can have shifting allegiances to parents. Once a child’s brain develops to a point where the child can hold both positive and negative information about a parent, though, children can become confused. They begin to question whether a parent is telling the truth about things in general or the other parent in particular. When the child reaches the ages of 10 or 11 years old, it can become very difficult for them to hold the different views they may have come to about their parents and, as a result, may choose to side with one parent over the other in order to free themselves from emotional conflict and the stress it causes. This becomes extreme in alienated children of 12 years old and older. These children, Dr. Fidler testified, can internalize the effects of alienation to the point where even the alienating parent could not get the child to visit the alienated parent. The child creates its own reasons to dislike or hate the alienated parent – ones which are not real.

JB was 8 3/4 years old when his parents separated, EB was just 6 years old and SB an infant.

In Hazelton v. Forchuk, 2017 ONSC 2282 at para. 75, Gray J. highlighted the importance of quick and consequential action where alienation is suspected, warning that inaction poses serious risks to children’s relationship with their parents,

“…where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse…At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible. (bolding added)

In Moreton v. Inthavixay, 2021 ONCA 501, the Court of Appeal observed that in relocation cases it was in children’s best interests to have “the issue determined as quickly as possible to provide stability to [the children’s] living arrangements, finality and closure”: Ibid, at para. 10.”

            A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 143-148

“The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:

1. 1. 1. 1. 1.     There must be evidence of historical communication between the parents and appropriate communication between them.
            2.     It can’t be ordered in the hope that it will improve their communication.
            3.     Just because both parents are fit does not mean that joint custody should be ordered.
            4.     The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
            5.     No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
            6.    The younger the child, the more important communication is.

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

The Court of Appeal has upheld a joint decision-making responsibility order in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable to appreciate the importance of the father’s relationship with their children.  See Andrade v. Kennelly, 2007 ONCA 898.

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour.  However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. Geremia v. Harb, 2008 CanLII 19764 (ON SC), 2008 CanLII19764 (Ont. S.C).

Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child’s best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615 (CanLII). Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022.

In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

In the case of S. (S.) v. K. (S.), 2013 CarswellOnt 10801, 2013 ONCJ 432 (Ont. C.J.), the court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate.  Particularly, the court should examine if the granting of such an order is:

a)   more or less likely to de-escalate or inflame the parents’ conflict; and

b)   more or less likely to expose the child to parental conflict.

In S.(S.), the court also wrote that it is a factor to consider whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a joint custody order can be a recipe for disaster.  It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; Pinda v.  Pankiw, 2018 BCSC 190.

Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.”

            Seyyad v. Pathan, 2022 ONCJ 501 (CanLII) at 68-79

“The list of best interests’ considerations in the Act is not exhaustive and is not simply a tabulated checklist. Caselaw has added some context to this list and the court includes a brief summary of those comments:

(1)         The court is to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

(2)         It will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

(3)         The parents should make every effort to protect the child from adult conflict see section 33.1 of the Act.

(4)         Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

(5)         The test for determining parenting time is what order is in the best interests of the child. A child should have as much time with each parent as is consistent with the best interests of the child. See  Knapp v. Knapp, 2021 ONCA 305, and Baredregt v. Grebliunis, 2022 SCC 22,

(6)         The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

(7)         A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 ONSC 2727 (CanLII), 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994 (CanLII), 2012 CarswellOnt 8551.

(8)         There is a presumption that regular parenting time by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See Jafari v. Dadar [1996] N.B.J. No. 38 (NBQB).”

N.K.M. v. K.E., 2024 ONCJ 551 (CanLII) at 25

“The motions judge also addressed the appellant’s contention that she executed the Settlement Agreement under duress. As the motions judge noted, vulnerability cannot be equated to duress. Duress is the coercion of a person’s will through illegitimate pressure, with one party dominating the will of another at the time that a contract is executed: Gordon v. Roebuck (1992), 1992 CanLII 7443 (ON CA), 9 O.R. (3d) 1 (C.A.); Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), leave to appeal refused, [1988] S.C.C.A. No. 185.”

Ramdial v. Davis, 2015 ONCA 726 (CanLII) at 42

“The trial judge correctly stated that s. 4 of the RPLA [Real Property Limitations Act] creates a ten-year limitation period for “an action to recover any land”. This includes claims advanced by way of resulting or constructive trust.”

          Gomes v. Da Silva, 2024 ONCA 792 (CanLII) at 12

“Credibility is a primary vehicle for determining the truth of alleged facts.  In the words of Justice Diamond, this task can be rendered “unenviably difficult” depending on the narrative put forward by the parties: Konstan v. Berkovits, 2023 ONSC 497, 2023 CarswellOnt 932 at para. 8.

In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 20, the Supreme Court of Canada cautioned that evaluating witness credibility is not “a science”.

Traditional criteria used to assess witness evidence includes witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178, 96 A.C.W.S. (3d) 177 at para. 46 per Justice Cameron.

Witness credibility is critical to the burden of proof: Konstan.  Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Konstan, at para. 9.

Credibility differs from reliability.  Credibility has to do with whether someone is honest, while reliability concerns whether their testimony is accurate: R. v. Sanichar, 2013 SCC 4, [2013] 1 S.C.R. 54 at para. 19.  One may find a witness generally credible yet doubt their reliability.  Conversely, a witness who is not credible may still offer reliable testimony.”

Luo v. Yang, 2024 ONSC 5884 (CanLII) at 29-33