Siegel's Family Court Calendar

“There is very little precedent in the case law addressing vesting orders being made against an estate. The Ontario Court of Appeal in Thibodeau v. Thibodeau, 2011 ONCA 110, 104 O.R. (3d) 161 at para. 42, however, has given direction as to the criteria that must be met prior to granting a vesting order:

The onus is on the party seeking such an order, and as a general rule the court’s discretion will only be exercised in favour of a s. 9(1) order where it is established  – based on the targeted spouse’s previous actions and reasonably anticipated future behaviour – that the equalization payment order granted will not likely be complied with in the absence of additional, more intrusive provisions.

The remedy of a vesting order should not be imposed routinely or indiscriminately, and should be ordered only if there is a real need, after all relevant considerations have been taken into account. There must be a concern that payment of an ordered equalization payment will not be honoured before the court can order the transfer of property under s. 9(1): Thibodeau, at para. 40.

The Court of Appeal has also confirmed that a vesting order is essentially an equitable remedy designed to work as an enforcement mechanism (Lynch v. Segal, 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (Ont. C.A.), at para. 56).

As there are sufficient funds in the Estate to pay the equalization payment owed to Linda Leith once the properties are sold, there is no concern that at an equalization order will be ignored or not complied with that would require the transfer of property.

The wishes of the testator also cannot be overlooked. For his own reasons, Mr. Leith specifically chose not to bequeath the Home Farm, or any other property, to Linda Leith. Vesting the Home Farm is not the only way to provide Ms. Leith with the equalization payment owed to her. Her ability to receive a full equalization payment is not prejudiced by the Estate selling properties owned by the Estate to generate sufficient funds to pay the equalization payment. The fact that Mr. Leith specifically chose not to bequeath a property to Ms. Leith is a significant factor that I must consider when determining the manner in which Ms. Leith will receive her equalization payment from the Estate.

Although selling the Home Farm to Linda Leith may save the Estate $120,000 or more by avoiding a commission fee resulting from the sale of the property, this factor does not change the primary issue that I must consider, which is honouring the testator’s intentions while still providing Ms. Leith with the appropriate equalization payment owed to her by the Estate.

The properties owned by the Estate must be sold to provide Ms. Leith with the equalization payment that is owed to her. Once the properties are sold, the Estate will have sufficient assets to pay the full equalization payment without requiring the property to be vested to satisfy the amounted owed.”

Leith v. Eccles, 2024 ONSC 4769 (CanLII) at 24-30

“In contract law, the doctrine of duress requires more than simply pressure. In this instance, duress would have required the coercion of the mother’s will through pressure, dominating her will at the time that the contract was executed, so that she had no realistic alternative but to submit (Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), 1988 CarswellOnt 887, at para 48, leave to appeal refused; Berdette v Berdette, 1991 CanLII 7061 (ON CA), [1991] O. J. No 788 (C.A), at para 22, leave to appeal refused; Ramdial v. Davis (Litigation guardian of), 2015 ONCA 726, [2015] O.J. No 5630, at para 42). In addition, as described in Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72, equity further recognizes a wider concept of duress, which includes coercion, intimidation, manipulation, or the application of illegitimate pressure.

The test for duress is a high threshold, in this case there is no evidence of any attempt of the father or his counsel to dominate the will of the mother at the time she executed the Minutes. As Penny J. wrote in Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, to establish duress, “there must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement” (at para. 53, varied in 2014 ONCA 827, [2014] O.J. No. 5565, but not on this point).”

            Armstrong v. Armstrong, 2021 ONSC 5774 (CanLII) at 46-47

“The Hague Convention is implemented as part of Ontario’s domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are “(1) to treat the interests of children as paramount in matters relating to their custody; (2) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’; and (3) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’”: A.M.R.I., at para. 47, citing the preamble of the Hague Convention.

To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child’s habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests.”

The mandatory return requirement under the Hague Convention is subject to limited exceptions, including, at art. 13(b), where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The governing case on the meaning of grave risk of harm within the Hague Convention is Thomson. In that case, the Supreme Court held that to constitute grave risk, the risk must be weighty and substantial, and must place the child in an intolerable situation: at p. 597. The word “grave” modifies the “risk” and not the “harm”: Thomson, at p. 596. The assessment must be undertaken from a child-centred perspective: Thomson, at p. 597. Stated otherwise, this defence to return will only be met in “situations that an individual child should not be expected to tolerate”: F. v. N., at para. 73, as cited in Osaloni v. Osaloni, 2023 ABCA 116, at para. 12. This is a high threshold: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 37, 40. Consistent with the objectives of the Hague Convention, the threshold does not require that children be “pushed beyond the limits of endurance”: Landman v. Daviau, 2012 ONSC 547, 17 R.F.L. (7th) 332, at para. 103, aff’d Husid v. Daviau, 2012 ONCA 655, 298 O.A.C. 182, leave to appeal refused, [2012] S.C.C.A. No. 485.

The grave risk threshold may be met by the actions or pattern of behaviour of a parent, with or without physical violence against a child. In Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.), this court held that a continued pattern of escalating abuse, combined with threats against the mother and her family were sufficient to create an intolerable situation for the child, where the child had not, himself, been physically abused by the father: see also Husid.”

          Kirby v. Woods, 2025 ONCA 601 (CanLII) at 46-50

“As explained in Thompson v. Drummond, 2018 ONSC 4762 at para. 12, divided success is not determined by a mathematical tally of issues won or lost. It requires a “contextual analysis” of the importance of the issues litigated and the resources devoted to them. Where success is divided, the court may award costs to the party more successful overall or on the primary issue, with adjustments for lack of success on secondary issues and consideration of the litigation history (Gomez-Pound v. Pound, [2009] O.J. No. 4161; Boland v. Boland, 2012 ONCJ 239).”

Singh v. Kaur, 2025 ONSC 4880 (CanLII) at 20

“It is well established that the absence of disclosure is a cancer on the process.  A recipient should not be required to reconstruct a payor’s financial affairs.  Non-disclosure may result in the loss of standing in the proceeding: Colucci v. Colucci, 2021 SCC 24, at paras. 4, 50 and 51; Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44; Di Sabatino v. Di Sabatino, at paras. 45-47; Manchanda v. Thethi, 2016 ONCA 909, at para. 13.

Where income reported on a party’s Income Tax Return does not fairly, completely or credibly reflect the money that is available to the party, it is open to the court to impute income: Di Sabatino v. Di Sabatino, at para 48.

The test for imputing income for child support purposes applies equally for spousal support purposes: Christodoulou v. Christodoulou, 2021 ONSC 6538, at para. 27; Di Sabatino v. Di Sabatino, at para. 49.

Evidence of a lavish lifestyle provides a basis upon which inferences about a party’s access to undisclosed income may be drawn: Bak v. Dobell, 2007 ONCA 204, 86 O.R. (3d) 196; Di Sabatino v. Di Sabatino, at para. 49.

In instances where a party has intentionally withheld disclosure or has provided less than candid and/or complete disclosure, the court may, in imputing income, draw an adverse inference against that party: see Meade v. Meade (2002), 2002 CanLII 2806 (ON SC), 31 R.F.L. (5th) 88, at para. 81 and see also s. 23 of the Child Support Guidelines.  The policy rationale behind this rule is that a party should not be allowed to benefit from the deficient record they have created or caused by their failure to comply with disclosure obligations: Di Sabatino v. Di Sabatino, at para. 51.

Yu v. Xiao, 2023 ONSC 4781 (CanLII) at 56-60

“Although the term “other cause” is not defined, courts have found that unemployment due to economic conditions, and a period of transition both constitute an “other cause.” There is also a growing recognition that social and economic factors and conditions such as unemployment, a period of transition, delayed adulthood, and the increased cost of living may also constitute an “other cause.” The caselaw regarding these potential “other causes” overlaps.

Claims for support for adult children who are able to work, but unemployed, have been granted, though generally the courts will limit the duration of support in these cases: see Phillip v. Phillip (Kreger), 1989 CanLII 4610 (SK KB), 60 D.L.R. (4th) 319 (SKQB), at para. 16. In Weir v. Weir, [1986] B.C.J. No. 3096 at paras. 12-13, the court held that dependence arising from a “poor job market” qualified adult children for support. Even more broadly, in Bruehler v. Bruehler, [1985] B.C.J. No. 1958 (CA), at para. 3, the court considered the state of economic depression to be a “other cause” for young people of 18 and 19 years of age who were unable to obtain employment to provide themselves with the necessaries of life.

Children who reach the age of majority and choose not to continue their education may require a brief period to become self-sufficient. Courts have provided “transitional orders” in these circumstances: see S.P. v. R.P., 2011 ONCA 336, [2011] O.J. No. 1968, at para. 32; Schmidt v. Buchanan, 2008 SKQB 314, [2008] S.J. No. 473, at para. 34; Gamache v. Gamache, 1999 ABQB 313, [1999] A.J. No. 474 at para. 3. In Gamache, the court observed that while parents do not “have an indefinite obligation to support a child who is attending school or is unemployed or underemployed,” parents do have an obligation to support adult children who are unable to provide for themselves through “a reasonable transition period.”

In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978, at para. 62, the court stated:

The case-law recognizes that children may require a reasonable transition period after ending their studies to seek out and obtain employment. The assessment of whether the child remains unable to withdraw from parental charge during such a transitional period for reasons that may justify ongoing entitlement to support, and the appropriate length of any such transitional period, involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances

In Jefic v. Jefic (Grujicic), 2022 ONSC 7240, [2022] O.J. No. 5698, at para. 68, the court acknowledged the increasing use of the transition period as an “other cause”. See also A.E v. A.E., 2021 ONSC 8189, at para. 189. In AE, Chappel J. concluded that the adult child, who continued to live with his mother, remained a “child of the marriage” despite having been out of school for more than a year. The court found he was both emotionally and financially dependent on his mother and recognized the impact COVID had on employment and the impact that the high-conflict parental separation had on his ability to achieve independence.”

            Brun v. Fernandez, 2023 ONSC 4787 (CanLII) at 22-26

“In Fisher v. Fisher, 2008 ONCA 11, at paras. 105-106, the Court of Appeal noted the following framework from the Spousal Support Advisory Guidelines (“SSAG”):

a.    A short-term cohabitation or marriage is one of less than 5 years;

b.    A medium-term cohabitation or marriage is from 5 to 19 years;

c.    A long-term cohabitation or marriage is 20 years or longer. However, a medium-term cohabitation/marriage becomes a long-term one if the parties’ years of marriage, plus the age of the support recipient at the date of separation, equals or exceeds sixty-five (“the rule of 65”).

An indefinite duration of spousal support is considered to be appropriate following the breakdown of a long-term marriage. The rationale is that, after a long-term marriage, the dependent spouse is often of an age that makes it difficult to achieve economic self-sufficiency. This same rationale applies to the rule of 65: Fisher, at paras. 35, 106.”

Grenier v. Tremblay, 2025 ONSC 4800 (CanLII) at 13-14

“The applicant claims child support for both Ayden and Ava in accordance with the Child Support Guidelines. The respondent agrees that Ava is his “child” within the meaning of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), however he denies that Ayden is his “child”. It is his position that Ayden has a biological father, and that the applicant’s new partner has also assumed a parental role with respect to Ayden since the parties’ separation.

Pursuant to s. 1(1) of the FLA, a “child” is defined as, “a person whom a parent has demonstrated a settled intention to treat as a child of his or her family”.

In Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 SCR 242, at para. 32, the Supreme Court found that a person who has demonstrated a settled intention to act as a child’s parent cannot unilaterally withdraw from that relationship upon separation. In determining whether a person has demonstrated a settled intention, the court must objectively examine the nature of the relationship between the person and the child prior to the separation. Every matter is assessed on its own facts, on a case-by-case basis.”

Smith v. Okros, 2025 ONSC 4758 (CanLII) at 7-9

Court orders are not optional. Non-compliance must have consequences: Gordon v. Starr, 2007 CanLII 35527 (ONSC), at para 23; Taylor v. Taylor, 2005 CanLII 63820 (ONSC), at para 3; Levely v. Levely, 2013 ONSC 1026, at paras. 12 and 13.

When a party fails to respect court processes, judicial responses should be “strong and decisive”: Levely.

The court must be alive to the risk that proceedings can be “hijacked by a party and transformed into a process for further victimizing the other party and the children in their care”: Levely.

Rule 1(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides that where a party has failed to comply with a court order, the Court may make any order it considers necessary for a just determination of the matter, including by striking a party’s pleadings pursuant to Rule 1(8)(c).

Rule 19(10) empowers the court to strike pleadings under Rule 1(8) for nondisclosure.

The court also has inherent jurisdiction to make an order that it considers appropriate to address a party’s failure to respect the court process, including breach of an order. This authority includes the jurisdiction to strike pleadings: Hughes v Hughes, 2007 CanLII 10905 (ON SC), [2007] OJ No 1282 (QL); CanLII 10905 (ON SC) at para 27.

Under Rule 1(8.4), striking a party’s pleadings denies the party any further notice of the steps in the case (except service of an Order) and disentitles them to participate in a case. The case may be dealt with in the party’s absence, and the matter may proceed to an uncontested trial. These consequences are automatic unless the Court orders otherwise.

The Ontario Court of Appeal has upheld striking pleadings when there is a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court”: Hill v Gregory, 2018 ONSC 6847 at paras 69-70; Ablett v Horzempa, 2011 ONCA 633 at para 7.

Courts are rightly cautious about striking pleadings in family matters involving parenting. Nevertheless, such pleadings can be struck: Purcaru v Purcaru, 2010 ONCA 92. Where a parent is unlikely to contribute in a productive manner to the trial and their past behaviour warrants striking their pleadings, that may justify a loss of the right to participate: Kim v McIntosh, 2023 ONSC 356; Holden v Ploj, 2023 ONSC 1287.

Applying Rule 1(8) generally involves three steps:

a.    First, the court must determine whether there is a triggering event that allows the court to consider the wording of Rule 1(8);

b.    Second, if the answer to (a) is yes, the court must consider whether it is appropriate to exercise its discretion to not sanction a non-complying party; the onus is on the non-complying party to persuade the Court why it should escape a sanction; and

c.    Third, if the court decides against exercising the discretion noted in (b), it retains very broad discretion as to the appropriate remedy.

Ferguson v Charlton, 2008 ONCJ 1 at para. 64

When deciding whether to strike pleadings, a court must consider if remedies in lieu of striking pleadings would suffice: Van v Palombi, 2017 ONSC 2492 at para. 30; Giavon v Giavon, 2020 ONSC 21 at para 69.”

Altman v. Altman, 2025 ONSC 4802 (CanLII) at 15-25

The status quo – and avoiding reckless creation of a new status quo – are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 (CanLII) at paras. 16 and 17.

It is a long standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial:  Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.) ; M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 CanLII 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

In making an interim order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994) 1994 CanLII 7379 (ON CTGD), 5 RFL (4th) 115.

To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704 (CanLII), para. 26.

It is generally not in the best interests of the child to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the OCL recommending an immediate change in residence.”

McDevitt v. McDevitt, 2023 ONSC 4750 (CanLII) at 18-22