Siegel's Family Court Calendar

“This is preliminary issue that must be addressed before delving into the law with respect to grandparent access. As noted, the Respondent mother raised the fact that the court could not order contact for the Applicant grandmother in absence of a 35.1A affidavit.

Section 35.1 of the Family Law Rules (“the Rules”), reads as follows:

35.1 (1) If an application, answer or motion to change a final order contains a claim respecting decision-making responsibility, parenting time or contact with respect to a child, the party making the claim shall serve and file with the document that contains the claim,

(a) an affidavit in Form 35.1 and, if the child or any party to the case has been involved in a child protection case or has received services from a child protection agency, an affidavit in Form 35.1A; and

(b) any other documents required by this rule. O. Reg. 42/21, s. 17.

Under the Rules, parties with child welfare involvement are required to file a Form 35.1A affidavit. The Applicant grandmother appears not to have filed this form, or if she did, it was not included in the continuing record transferred from Barrie. The form is not normally included in the continuing record.

While the Rules mandate filing, they do not explicitly prohibit a judge from granting parenting time or contact due to an inadvertent omission of the form. Courts are encouraged to prioritize the child’s best interests, and procedural errors may be remedied if they do not prejudice the other party or compromise child safety.

My own research did not find any discernible case law directly addressing whether a missing Form 35.1A bars the court from making a contact. It was not provided by the Respondent mother either. Rule 1(7), however, does allow for judicial discretion in procedural matters, which suggests that a court could potentially allow the affidavit to be filed late or make directions to cure the defect.

Although this issue is not about pleadings, an area in which case law is available, it can be analogous. Family law proceedings allow for more flexibility than civil litigation. As affirmed in Frick v. Frick, 2016 ONCA 799, the Rules are designed to reflect the unique nature of family cases, emphasizing active case management, early disclosure, and proportionality in resolving disputes.

In Jamieson v. Jamieson, 2020 ONSC 6935, it was held that courts may grant relief that was not explicitly pleaded if two conditions are met:

(1)         It is clear that the relief is warranted; and

(2)         No prejudice arises from the failure to plead the request.

In Khamis v. Noormohamed, 2011 ONCA 127, the Court upheld a trial decision allowing an unequal equalization claim, noting that the opposing party had sufficient notice of the issue.

Where the best interests of a child are at stake, courts are especially inclined to overlook deficiencies in pleadings. This approach was supported in Sleiman v. Sleiman, 2002 CanLII 44930 (ON CA) and Olubowale v. Morgan, 2011 ONCJ 353.

In this case, there is no need to cure the deficiency, seeing a trial has been completed. The Applicant grandmother did complete a 35.1 affidavit. She is a self-represented party and while that comes with rights and obligations, it also comes with some accommodations. This is not a case where the Applicant grandmother attempted to hide any involvement with child welfare agencies. While she did not provide a 31.1A Affidavit, she completed and obtained her Report on Records from every child welfare agency in the jurisdictions she has resided in. We are aware that she had involvement with only one child welfare agency. The report was provided, and the investigator was cross-examined at trial. There is no prejudice.

Normally the lack of information in a 35.1 and 35.1A affidavit would speak of risk to the child, but that has been mitigated through the information already provided and made an exhibit at trial.  Moreover, this particular issue should have been addressed at the trial management conference. Child welfare involvement was known to the parties from the start of the proceedings. It cannot be used at this stage to prevent a decision on the merits. I find that a decision on contact can proceed in the absence of a 35.1A affidavit, where particulars of the Applicant grandmother’s involvement with child welfare agencies have been provided for consideration on the child’s best interests.”

Ruffett v. Ruffett, 2025 ONCJ 568 (CanLII) at 108-118

“Section 19(1) of the Federal Child Support Guidelines permits a court to impute income of someone in Dad’s position if it considers it appropriate in the circumstances.  The section provides a non-exhaustive list of relevant circumstances, including (d), applicable when “it appears that income has been diverted” and (f), when “the spouse has failed to provide income information when under a legal obligation to do so”.

In this case, I am satisfied Mom has established a statutory basis to permit the imputation of income on both grounds:  Michaud v Kasali, 2016 ONSC 443, at para. 47.  However, as Justice McGee explains in Michaud, that is not the end of the exercise.  There must be evidence available in the motion record capable of grounding the inference or imputation:

Rule 19(1)(f) of the Rules is no more than an invitation to fill in the blank when a payor fails to provide income information, as it is when a payor is in default, or his pleadings are struck.  The amount to be imputed must still be grounded in the evidence.  The question to be asked is:  what amount is reasonable in the circumstances?”

Alibdah v Altawil, 2025 ONSC 5109 (CanLII) at 31-32

“When considering the amount of amortization expense, Mr. Evans reduced the amount of amortization expense to $45,000, arguing that it is more consistent with the average for 1618302 over the past five years.  He opined that it was a reasonable adjustment considering its impact on corporate income.  Mr. Evans makes the point that there is no logic in a corporation spending close to one million dollars in equipment purchases only for the owner to be making less than minimum wage at the end of the year.  This is not a reasonable return on the corporate investment. Mr. Evans’ report states that corporate income was adjusted for all years under review.

The amortization expense is also viewed as being unreasonable by Mr. Evans given that the 2018 sale of much of the equipment realized returns that were much higher than the book value. Thus, Jaime’s income for 2018 is significantly higher.

Mr. Clarke disagrees.  He has opined that the rate of amortization is consistent with the maximum amounts permitted by Revenue Canada. He also points to the fact that the Guidelines prohibit amortization for real property but not for equipment.  In terms of the specific amortization expense amounts, Mr. Clarke testified that the amount of amortization was lower than what CRA allows for 2018 but it was higher for 2019 and 2020.  However, based on Exhibit #67, it seems that the dispute only applies to 2019.

Jaime’s accountant, Mr. Mehlman also felt that Jaime’s depreciation is common for similar businesses that have significant assets that can be depreciated. He felt it was common for other similar businesses.

I agree in large part with Mr. Clarke. While I accept that the impact of the amortization expense effectively shelters Jaime from his support obligations, the reality is that the Guidelines specifically prohibit amortization in relation to real property and not for equipment.  This is clearly not an oversight.  To make an arbitrary reduction in the amortization expense to $45,000 does not find any support in s. 19 of the Guidelines.  I am of the view that it is not a principled way of addressing the impact of the amortization expense.

However, the evidence is that Jaime’s amortization expense has not strictly followed the CRA guidelines, and that at least for 2019 and 2020, the amortization expense has exceeded the CRA amounts.  I have no evidence to deal with the excessive amortization expense for certain years but I disagree with the approach of arbitrarily reducing the amount to $45,000.

Some inequity is apparent in the fact that the amortization expense does not get added back to Jaime’s income since it is not related to real property.  Amortization is a non-cash expense that positively impacts corporate cash flow but negatively impacts available corporate income to the shareholder.  A cash flow analysis was done by Mr. Clarke for the years 2015, 2016 and 2017 as part of Exhibit #66.  In that report, Mr. Clarke draws a parallel between the cash flow analysis and the level of income imputed by the court in the amount of $82,000.

It is noteworthy that the cash flow analysis in Exhibit #66 provides a range of cash flow that is between $30,000 to $50,000 higher than Jaime’s reported income.

The issue of positive corporate cash flow becomes more relevant when considering the question of imputed income as will be discussed below.  In the end, I reject Mr. Evan’s approach to reduce amortization to $45,000.”

Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 178-186

“In Damashin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (Ont SCJ) additional principles for the Court to consider on temporary spousal support motions were set out as follows:

(1) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.

(2) In the event a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has a need and the other party has ability to pay.

(3) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case or to determine the extent to which either party suffered economic advantage or disadvantage because of the relationship or its breakdown. That task is for the trial judge.

(4) The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until trial. Interim support is meant to be a “holding pattern” to, in so much as possible, maintain the accustomed lifestyle pending trial.

(5) If a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.”

          John v. John, 2020 ONSC 5337 (CanLII) at 122

“When a respondent to a divorce application fails to serve and file an answer within 30 days of service pursuant to rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), the applicant may seek final Orders on an uncontested trial per rules 10(5) and 1(8.4). No further notice need be provided.

An uncontested trial is a trial at which only the party making the claim provides evidence and submissions. The moving party bears the onus to demonstrate on a balance of probabilities that there is a sufficient evidentiary basis on which to make each of the Orders sought.

Additionally, the moving party has a “very high duty” to make full and frank disclosure at an uncontested trial, and to advise the court of all material facts required to make a just determination, including material facts that do not assist his or her case: see Irons v. Irons, 2020 ONSC 1471, at para. 90.

Orders on uncontested trials have a special form (25D) and a special affidavit (23C), but the evidentiary standards remain the same. Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given, see rule 23(22) of the FLR.”

Sethi v. Sethi, 2025 ONSC 5079 (CanLII) at 34-37

“While the law concerning gratuitous transfers as articulated in the leading case from the Supreme Court of Canada in Pecore v. Pecore 2007 SCC 17 is not on point, I did find some assistance in a gratuitous transfer case decided by the Ontario Court of Appeal in Barber v Magee  139 OR (3d) 78, 2017 ONCA 558, 139 OR (3d) 78, In discussing a case of a gratuitous transfer between family members, in Barber at para 4 the Ontario Court of Appeal discussed the difference between gifts and loans stating;

[4] Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan (citations omitted) A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.

This decision is useful as it outlines indica of a loan in a family law context. Those indicia of a loan noted in Barber, such as formal records setting out terms and demand for payment are lacking in the present matter.”

Langlais v. Dolyny, 2025 ONSC 5010 (CanLII) at 18-19

“Section 131 of the Courts of Justice Act provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rules 24 and 18 of the Family Law Rules, which set out numerous principles to guide the court in the exercise of its discretion in the family law context.

The modern rules respecting costs aim to foster the following four fundamental purposes: (a) to partially indemnity successful litigants for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and (d) to ensure that cases are dealt with justly in accordance with the primary objective of the Family Law Rules set out in Rule 2(2). See: Ryan v. McGregor (1926), 1925 CanLII 460 (ON SCAD), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.)).”

Malpani v. Malpani, 2022 ONSC 5029 (CanLII) at 5-6

“Section 4 of the RPLA [Real Property Limitations Act] imposes a ten-year limitation period on actions to recover land, which, as applicable to this case, provides as follows:

No person shall … bring an action to recover any land … but within ten years next after the time at which the right to … bring such action, first accrued to … the person making or bringing it …

In Waterstone Properties Corporation v. Caledon (Town), at para. 32, the Court of Appeal explained, relying on its findings in McConnell v. Huxtable, that an action to obtain an ownership interest in land is an action to “recover any land” for the purposes of s. 4 of the RPLA, including through a resulting trust, stating as follows:

The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust: 2017 ONCA 623, [2017] O.J. No. 4087, at para. 32, relying on McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 38-39; and Hartman Estate v. Hartfam Holdings Ltd. (2006), 2006 CanLII 266 (ON CA), 263 D.L.R. (4th) 640 (Ont. C.A.), at para. 56.

The RPLA is thereby applicable to the claim advanced by the Applicants for the recovery of land, whether seeking the finding of an inter vivos trust or a resulting trust. The Limitations Act is inapplicable because s. 2(1)(a) of the Limitations Act provides that the Limitations Act does not apply to proceedings governed by the RPLA.”

Andreacchi v. Andreacchi, 2023 ONSC 4877 (CanLII) at 41-43

“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