Siegel's Family Court Calendar

“There is some dispute in the case law as to whether the material change in circumstances test applies with equal force to a temporary, as opposed to a final, order. In Miranda, at paras. 26-28, Radojevic v. Radojevic, 2020 ONSC 5868, at paras. 16-18 and Sullivan v. Boucher, 2020 ONSC 8062, at para. 21, the Courts concluded that the material change in circumstances test applies regardless of whether the order is a temporary or final order.

In contrast, Henderson J. has held that it is open to the Court to consider a motion to change a temporary order if there is a “compelling reason”, regardless of whether there is a material change in circumstances: Calabrese v. Calabrese, 2016 ONSC 3077 at para. 27; M.D. v N.J., 2016 ONSC 6058, at paras. 21-23.

That said, Henderson J. made clear that courts must proceed cautiously before changing even a temporary parenting order: see Calabrese, at para. 28:

In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.

See also M.D. v. N.J., at para. 24:

However, there is a significant body of law that suggests that it is not in a child’s best interests, in most cases, to change an existing temporary parenting order prior to trial. By necessity, any change prior to trial must be founded on affidavit evidence only. A full vetting of the evidence will not be possible until the trial, at which time the trial judge will have the benefit of oral evidence from, and cross-examination of, all witnesses. Temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interests of a child.

See also the cases cited by Henderson J. at para. 25.

I agree with Kurz J. in paras. 16 and 17 of Radojevic that there may not really be a significant difference between the two approaches. Subject to the two exceptions outlined below, I would follow the material change of circumstances approach because it is consistent with the express language of s. 29 of the Children’s Law Reform Act.”

          Kirichenko v. Kirichenko, 2021 ONSC 2833 (CanLII) at 15-20

“In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), the court found that:

1. 1. 1. 1. 1. There must be evidence of historical communication between the parents and appropriate communication between them.
            2. Joint custody cannot 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 in 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.

See also LaPalme v. Hedden, 2012 ONSC 6758, at para. 58.

In Giri v. Wentges, 2009 ONCA 606, the court said the following at para. 10:

Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.).

When the parents disagreed on too many important issues that affected the child’s best interests the court found joint custody and parallel parenting was not in the child’s best interests: see Graham v. Bruto, 2008 ONCA 260, at para. 2.

Although the court does not expect that the communication between separated parents is to be free of conflict, the issue is whether it may be achievable in the future: see Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 ONSC 6423, 66 R.F.L. (6th) 438, at para. 94.

The court should look at how the parents parented prior to the separation to determine if coparenting and cooperation is possible: see Growen v. MacKenzie, 2008 ONCJ 170, at para. 20.

I find the father to be evasive, insincere, and not credible at times and there does not appear to be much positive communication between the parties. To have joint decision-making responsibilities there must be some degree of cooperation and communication between the parties.”

          L.B. v. R.H., 2022 ONSC 2268 (CanLII) at 83-88

“The mother seeks full recovery as her primary request.  There is no presumption in the Rules that provides for a general approach of “close to full recovery” costs. Rules 18 and 24 expressly contemplate full recovery only in specific circumstances:

a.    Matching/exceeding an offer to settle (Rule 18(14)).

b.    Bad faith (Rule 24(8)). Beaver v. Hill.”

J.N. v. C.G., 2022 ONSC 2225 (CanLII) at 15

“The respondent argues that he was subject to duress. He alleges that Mr. Snell advised him that “it may get worse for you” if he did not agree to the Minutes of Settlement. The respondent also indicates his concern that if he did not agree to the Minutes he might incur an additional $10,000 to $15,000 in legal costs if the matter proceeded to arbitration.

In my view the financial pressures described by the respondent do not meet the requirements of “duress”. In Taplin v. Walsh, 2016 ONSC 2998, Woodley J. set out the following definitions of duress in the context of a s. 56(4) case:

Duress is present where there is coercion of the will of one party or where one party feels that they have no other realistic alternative but to sign the agreement. While one party might feel pressured and trapped by the circumstances into signing an agreement, this does not mean that the other party exerted undue pressure or subjected the party to duress (Balsmeier v. Balsmeier, 2016 ONSC 950, at para. 135).

…

The circumstances that will constitute duress must be quite extreme; antagonism and stress do not qualify as duress or economic duress. The burden is on the party alleging duress to prove that duress existed (Mayerovitch v. Breslin, 2012 ONSC 5192, at paras. 336, 344).

The affidavit evidence presented by the respondent does not disclose that duress of the nature and quality required existed. The economic and personal pressures described by the respondent are the types of pressures commonly felt by one or both parties involved in the negotiation and settlement of domestic financial disputes. Such negotiations are almost always stressful; parties are forced to make difficult financial decisions with long-term implications for themselves and their children. The costs consequences of litigation are an inherent pressure faced by all litigants. The threat of potential increased legal costs if a settlement is not reached is intended to put pressure on both parties to arrive at a negotiated settlement. These inherent pressures cannot be used as a basis for setting aside a negotiated agreement.

In addition, most settlements contain some element of compromise, and the caution that “it may get worse for you” if the case proceeds to arbitration or court is a fair and usually accurate warning to a recalcitrant party.

There is no suggestion by the respondent that the applicant was aware of his suicidal thoughts, or that she deliberately took advantage of or exploited him in these circumstances. There is no suggestion that the respondent sought an adjournment of the mediation to accommodate his mental health issues. The applicant participated in the mediation and agreed to the Minutes of Settlement in good faith.

Finally, while the respondent indicates that he was suffering from depression and addiction issues when he signed the Minutes of Settlement, there is no suggestion in his affidavit evidence that he lacked legal capacity to enter into an agreement at that time.”

          O’Dacre v. Cross, 2019 ONSC 2265 (CanLII) at 47-52

“In Sydor v. Sydor, 2003 CanLII 17626 (ON CA), [2003] 178 O.A.C. 155 (C.A.), Feldman J.A. said at paras. 22-27 that the common law rule is that a separation agreement is void upon reconciliation, “subject to a specific clause in the agreement that would override the common law”. She further noted that “a specific release of all rights to a particular property can be viewed as evidence that the parties considered the disposition of that property final and binding, regardless of what may occur in the future”.

          Miaskowski v. MacIntyre, 2019 ONSC 1872 (CanLII) at 22

“The mother contends that the trial judge erred by ordering her to undergo a psychiatric assessment at the end of trial before determining whether she could have unsupervised access to the children. She argues that the trial judge did not have jurisdiction at the end of the trial to make such an order, and that assessment reports should only be reserved for clinical issues.

In this case, the trial judge held that the best interests of the children required information about the mother’s mental health for the court to assess any affect on the children.

In my view, the trial judge did have jurisdiction to order an assessment pursuant to s. 30 of the CLRA and/or s. 105 of the CJA. A plain reading of these provisions and a review of the case law supports the trial judge’s request for a psychiatric assessment in this case. The cases cited by the trial judge on this point suggest that an assessment can be ordered where there is sufficient evidence that such an assessment would be directly pertinent to determining the best interests of the child: V.S.J. v. L.J.G. (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319, (Ont. S.C.), at paras. 147-48; Merkand v. Merkand, 2006 CanLII 3888 (Ont. C.A.), at para. 6, leave to appeal refused, [2006] S.C.C.A. No. 117; Young v. Young, 2013 ONSC 4423, at paras. 87-89; Kucan v. Santos, 2017 ONSC 6725, at para. 78; Children’s Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), at paras. 71, 87.

As for the timing of the order, the trial judge was faced with a difficult situation. The trial judge noted that neither party had requested a s. 30 assessment at trial, although he also noted that the father had initially requested one at the 2014 motion (which request was not pursued further). In my view, there is nothing in s. 30 of the CLRA that would prohibit the trial judge from ordering an assessment at the end of the trial, especially in light of the trial judge’s willingness to revisit his preliminary conclusion about access upon obtaining the results of the assessment. Section 30 of the CLRA is silent as to when assessments may be ordered, so it follows that the trial judge had the discretion at the end of the trial to order an assessment. The trial judge explained clearly why he needed this evidence to determine whether the mother having unsupervised access was in the best interests of the children:

The motions judges were concerned with the various emails and other communications authored by [the mother]. Those concerns continue. She made disturbing comments regarding depression and ending her life. Her explanation cannot be compelling in the absence of a medical opinion. It is beyond my ability to reach any conclusion as to the state of her mental health.

I would defer to the trial judge’s decision that the assessment was reasonably necessary to help determine material issues before the court.

I do not accept the mother’s submission that the trial judge erred because such reports should only be reserved for clinical issues. The trial judge determined at the outset of his reasons that there were clinical issues identified at trial that had, and may continue to have, a direct impact on the children. In any event, the weight of the jurisprudence suggests that there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA; rather, the inquiry is fact-driven and flexible: see e.g., Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435, at para. 48; A.A. v. D.S., 2022 ONSC 1389, at paras. 30-45. See also Kramer v. Kramer (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont. S.C.); Parniak v. Carter (2002), 2002 CanLII 45671 (ON CJ), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 2000 CanLII 20393 (ON SC), 10 R.F.L. (5th) 276 (Ont. S.C.).”

          A.C.V.P. v. A.M.P., 2022 ONCA 283 (CanLII) at 25-30

“The Respondent further argues that the letters from Dr. Moss and Dr. Wong do not establish a “causal nexus” between S.H.’s health issues and her ability to be enrolled full time in university.

The onus is on the Applicant to establish that S.H. is still a “child of the marriage”: Szitas v. Szitas, 2012 ONSC 1548 at para. 28. Where the child is pursuing a course of education, the ultimate question is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child”: Szitas at para. 37, citing Geran v. Geran, 2011 SKCA 55, 97 R.F.L. (6th) 68. The analysis of whether a child is unable to withdraw from parental charge involves a careful assessment of the child’s overall condition, means, needs and circumstances. An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in half-hearted or ill-conceived educational endeavours: Laramie¸ citing Kohan v. Kohan, 2016 ABCA 125, 77 R.F.L. (7th) 44.

When the child is attending school part-time because of a disability, “cogent evidence” about the nature and extent of the child’s disability or illness and the impact on the child’s ability to obtain the necessities of life on their own is required: Szitas at para. 39. Children may have physical or mental health conditions which affect their abilities to complete school and obtain employment and still be capable of becoming financially independent. In Szitas, although the child’s doctor had provided a letter stating that the child’s depression and anxiety “affected his ability to complete school and obtain employment”, Chappell J. found that there was insufficient evidence about how these conditions affected the child’s day-to-day functioning, whether he had attempted to secure full or part-time employment, whether he was entitled to government subsidies, and whether his conditions had improved since the writing of the letter.

Although compelling evidence is required to establish ongoing entitlement to support, and that evidence must show a causal nexus between the disability and the inability to withdraw from parental charge, I find that the nexus need not be explicitly presented by a medical expert, as the Respondent contends. The court may draw conclusions about the impact of the disability on the child from the totality of the evidence presented.

On an interim motion for support, there must be a prima facie case for entitlement: Maelbrancke v. Proctor, 2016 ONSC 1788 at para. 9, citing Lopez v. Lopez (1993), 1993 CanLII 16085 (ON SC), 48 R.F.L. (3d) 298 (Ont. C.J.), Butzelaar v. Butzelaar (1998), 1998 CanLII 13423 (SK QB), 174 Sask. R. 125 (Q.B.), and Land v. Aitchison, 2005 CarswellOnt 372 (Ont. S.C.J.). This is a relatively low threshold of proof.

I find that the Applicant has met this burden of proof and that S.H. is entitled to continue to receive child support on an interim basis. There is evidence that S.H. is enrolled part time at Y[…] University and attending within the academic accommodations granted to her. There is also evidence from S.H.’s doctors and from the Applicant that S.H. suffers mental and physical health challenges which limit her academic functioning. Her transcripts show that she has failed some courses but achieved passing grades as high as a B+ in others. I note also that this is S.H.’s first university degree, and she expects to complete the degree in a little over a year. The courts will generally allow ongoing support for a child who is diligently pursuing studies in a suitable program until the completion of at least the first college or university program: Laramie at para. 45, citing Marsh v. Jashewski, 2011 ONSC 3793, 5 R.F.L. (7th) 360 and Caterini v. Zaccaria, 2010 ONSC 6473, 97 R.F.L. (6th) 249.”

M.M.D. v. J.A.H., 2019 ONSC 2208 (CanLII) at 85-90

“Rectification is available where a document incorrectly expresses the parties’ true agreement. The purpose of rectification “is to give effect to the party’s true intentions, rather than to an erroneous transcription of those true intentions”. The premise underlying this remedy is that it would be unfair to hold a person to be bound by a transaction they never agreed to: Canada (Attorney General] v. Collins Family Trust, 2022 SCC 26 at para. 42 and Canada (Attorney General) v. Fairmont Hotels Inc, 2016 SCC 56 at paras. 12 and 13. It is not available where a party seeks a different agreement; it is meant for a situation where there is an error in recording the agreement entered into. That is, “… rectification aligns the instrument with what the parties agreed to do, and not what, with the benefit of hindsight, they should have agreed to do.” (Fairmont Hotels at para. 19).

Rectification may be granted on the basis of a common or unilateral mistake (Fairmont Hotels at paras. 14 and 15).

In order for the court to rectify on the basis of a common mistake, the moving party must show, on a balance of probabilities, that there was a prior agreement with ascertainable and definite terms, that it was still in effect at the time the agreement was executed, that the instrument fails to accurately record the agreement, and the instrument, if rectified, would carry out the prior agreement (Fairmont Hotels at para. 38 and  Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19; [2002] 1 SCR 678 at paras. 37 to 41).

Rectification is also available when a unilateral mistake is made if the party resisting rectification knew or ought to have known about the mistake, and permitting the party to take advantage of the mistake would be fraud or the equivalent of fraud (Fairmont Hotels at para. 15, Performance Industries at para. 38). Fraud in this context can be “equitable fraud or constructive fraud” and may include unfair dealings and unconscionable conduct (Performance Industries para. 39). The inquiry is an objective one. “The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.” McCabe v Tissot 2015 ONSC 2557 at para. 46.”

            Mihaylov v. Mihaylova, 2023 ONSC 2119 (CanLII) at 25-28

 “The use of affidavit evidence at trial is increasingly relied upon” as a tool to shorten and bring focus to the trial process, with the intention of minimizing costs of the parties: Rule 23(20.1), Family Law Rules.  It can be quite effective.  It can also prove to be a challenge for counsel accustomed to drafting affidavits for use on interlocutory motions.  Hearsay evidence is permitted in affidavits for procedural matters before the Court; it is not permitted for trials.

I accept the general principle that the rules of evidence must be applied in a relatively flexible fashion when considering the best interests of the children: Power v. Power, 2004 ONCJ 281, at para. 51.  This ensures all relevant information, which may include evidence of character, lifestyle or past conduct, is before the Court when facing the difficult assessment of what parenting plan is in the best interests of the children.  However, the rules of evidence respecting hearsay must not be relaxed at trial simply because a witness provides evidence in chief by way of a sworn affidavit.  This applies in all trials, whether contested or uncontested.”

            A.M. v. D.M., 2023 ONSC 2113 (CanLII) at 1-2

“As set out in Cunningham v. Moran, 2011 ONCA 476, all claims arising from the breakdown of a marriage ought to be heard at one time.”

            Cote v. Cote, 2019 ONSC 2088 (CanLII) at 11