“A preliminary procedural question is whether this court has jurisdiction over the appeal or whether the orders were interlocutory, such that the appeal is to the Divisional Court under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). This is a perennially vexing question. Although an order appointing a litigation guardian is interlocutory, the weight of the authority suggests that this court has jurisdiction over appeals from the appointment of a guardian of property: see e.g., Roelandt v. Roelandt, 2016 ONCA 858; Public Guardian and Trustee v. Gaumont, 2018 ONCA 731. On the basis of Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9, we conclude that this court has jurisdiction over the final order, such that, to the extent that the other orders under appeal are interlocutory, it can address them as well under s. 6(2) of the CJA. No party argued to the contrary.”
June 5, 2026 – Finding In Need Of Protection
“The Society has the onus to prove on a balance of probabilities that the child is in need of protection: see Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 24 R.F.L. (8th) 384, at para. 19. If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application: see Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.
Subsection 74(2)(b) of the Act provides as follows:
74(2) A child is in need of protection where,
…
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child
The risk of harm under s. 74(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours: see Children’s Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (Ont. S.C.).
Harm caused by neglect or error in judgment comes within the finding of harm: see Children’s Aid Society of the Niagara Region v. T.P., 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.).
Subsection 93(1) of the Act provides as follows:
93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.”
The Children’s Aid Society of London and Middlesex v. P et al., 2025 ONSC 3344 (CanLII) at 29-33
June 4, 2026 – The Status Quo and Interim Parenting Orders
“The purpose of an interim parenting order is to provide stability to the children and the parties pending trial. It has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331, para. 34.
The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order: Gray v. Canonico, 2020 ONSC 5885, para. 48.”
June 3, 2026 – Did We Settle or Not?
“In Fernicola v. Fernicola, 2022 ONSC 1041, Woodley J. confirmed that three lines of inquiry must be considered when determining whether the parties have reached a settlement. She stated at para. 55 as follows:
To determine whether the parties have reached a settlement, the Ontario Court of Appeal in Halpern v. Halpern, 2014 ONSC 4246 (Ont. S.C.J.) (CanLII), citing Lundrigan v. Andrews, 2009 ONCA 160 (Ont. C.A.) (CanLII) and Ward v. Ward, 2011 ONCA 178 (Ont. C.A.) (CanLII), has set out three distinct lines of inquiry to consider:
(1) was there a “meeting of the minds” or consensus ad idem, that was manifest to the reasonable observers?
(2) was there a consensus on all of the essential terms of the agreement? and
(3) did the parties make the agreement conditional upon any other term, or subject to execution or a formal contract?
Woodley J. also observed, at para. 56, that “[t]he test is objective and the parties will be found to have reached a meeting of the minds where it is clear to the objective reasonable bystander in light of all the material facts that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. (See Cook v. Joyce, 2017 ONCA 49 (Ont. C.A.) (CanLII)).””
June 2, 2026 – Averaging Income
“I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes, rather than a three-year average.
The starting point for determining income for both child and spousal support is ss. 16 to 20 of the Federal Child Support Guidelines, S.O.R./97-175. Section 16 sets a presumption that a spouse’s most recent annual income shall be determined from the sources of income set out in Revenue Canada’s general tax return Line 150 income: Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 19. Section 17(1) permits a court to look over the last three years in the following circumstances:
17(1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
Accordingly, “the Guidelines rely on the more recent past to predict the near future and do not adopt averaging as a default methodology:” Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 138. The language in s. 17 is permissive, not mandatory. The trial judge was under no obligation to average David’s income: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 50.”
June 1, 2026 – Unjust Enrichment & The “Conferral of Mutual Benefits”
“No counterclaim is advanced and set-off is not specifically pleaded as a defence. However, Mr. Kinsley’s position at trial was that Ms. Galbraith benefited from the relationship and from residing in the home. This position cannot have been a surprise to Ms. Galbraith. It has been a known feature of the law of unjust enrichment since before Kerr v. Baranow, 2011 SCC 10, where the Supreme Court of Canada said, at para. 48, that “it is unjust to pay attention only to the contributions of one party in assessing an appropriate remedy.” And while speaking of the correct approach to addressing the mutual exchange of benefits, the court said, at para. 109 of Kerr, that the conferral of mutual benefits “should be taken into account at the defence and/or remedy stage.” The court also said, at para. 109, that this “can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.” Here, it is appropriate to evaluate Ms. Galbraith’s unjust enrichment claim bearing in mind the benefits and enrichment she also received from the relationship.”
May 29, 2026 – Rule 1(8) Orders: Incomplete Disclosure
“In Mullin v Sherlock, 2018 ONCA 1063, the Ontario Court of Appeal addressed when a court should grant relief under r. 1(8) in the face of incomplete disclosure. It established a decision-making framework when r. 1(8) remedies are sought (see paras. 44 to 49).
First, the judge must be satisfied that there has been non-compliance with the court order. Second, once satisfied, a judge may have recourse to alternative remedies in r. 1(8) and should consider the following factors:
a. The relevance of the non-disclosure, including its significance in hindering resolution of issues in dispute.
b. The context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
c. The extensiveness of existing disclosure;
d. The seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
e. Any other relevant factors.”
Meffe v. Meffe, 2023 ONSC 3195 (CanLII) at 24-25
May 28, 2026 – Plumley No Longer The Law on Interim Mobility
“I agree with the Appellant that the factors set out in Plumley, which was decided in 2014, have been overtaken by the amendments to the Divorce Act. The reasoning in Barendregt makes this clear.”
May 27, 2026 – Can An Arbitrator Compel A Party to File Tax Returns?
“In this case, Bilah is asking the court to compel disclosure from Akiva, who is a party to the Mediation/Arbitration agreement. She makes this request on the basis that the Arbitrator stated in his Arbitral Award that he lacked jurisdiction to compel Akiva to file his personal and corporate income tax returns and financial statements. By contrast, Bilah argues the court has inherent jurisdiction to compel a party to file income tax returns, personal and corporate, and, as such the court should use its inherent jurisdiction to do so.
Bilah argues that Akiva’s personal and corporate tax returns are required to determine his income for support purposes and specifically referred to in s.21 of the Child Support Guidelines, SOR 97/175 (“CSG”). This information is also required to determine spousal support, since the definition of “income” in the Spousal Support Advisory Guidelines mirrors the definition in the CSG. In addition to the statutory requirements for Akiva to produce full disclosure, personal tax returns and corporate tax returns and financial statement, the Family Law Rules require a party to attach his/her Notices of Assessment and tax information to his/her financial statement.
It is under this context that courts in Ontario have routinely ordered parties to file their income tax returns to facilitate disclosure in support cases. Bilah’s counsel referred to a number of cases where a payor was ordered to file personal and corporate income tax returns and when such returns were not filed, the payor’s pleadings were struck or he/she was found in contempt. This court has inherent jurisdiction to order individuals and corporations to file tax returns in its effort to ensure due process and ensure that cases are being dealt with justly. However, these are cases where the parties were in litigation before the Court and did not consent to a Mediation/Arbitration process as Bilah and Akivah have.
Akiva argues that the Arbitrator did not compel Akiva to file his personal or corporate tax returns but he was ordered to give Bilah the information she requires to determine Akiva’s income for support purposes. The Arbitrator ordered Akiva to produce all of the information he must give to Mr. Martin to determine his income to Bilah at the same time, so that she would have access to the information and data that would normally appear on an income tax return.
The Arbitrator made a discretionary decision about the proportionality of disclosure Akiva is to produce. This is entirely within his jurisdiction under the Mediation/Arbitration Agreement. Further, there is no way for Bilah to know the outcome of the Arbitration at this juncture. Having stated how important the information is to the issues of child and spousal support, it may well be that the Arbitrator draws an adverse inference if Akiva does not produce the financial documentation he has been ordered to produce.
I find that this Court has no jurisdiction to interfere with the 2023 Interim Arbitral Award. The issue of Akiva’s child and spousal support obligations from January 1, 2023 onward is solely within the jurisdiction of the Arbitrator as set out in the parties’ Mediation/Arbitration Agreement. Even if I disagree with the Arbitrator’s decision as to whether or not he had jurisdiction to order Akiva and/or his company to file income tax returns and financial statements, it does not permit this Court to interfere with the 2023 Interim Arbitral Award when the parties have submitted these issues to Mediation/Arbitration.”
Medjuck v. Medjuck, 2024 ONSC 2980 (CanLII) at 33-38
May 26, 2026 – The Contino Analysis: Section 9, Guidelines
“The seminal case that addresses the analysis required to be undertaken by the court in a s.9 analysis is Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) (“Contino”), in which the Supreme Court of Canada held that the framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of child support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The case law under s.9 of the Guidelines suggests that the weight of each factor under s. 9 will vary according to the particular facts of each case.
The Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children. A “set-off” is not presumptive.
Section 9(a) requires the Court to determine the parties’ incomes and calculate the simple set-off, as the “starting point” of the s.9 analysis. However, the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.
Further, according to Contino, section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. Contino explains that the Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the childcare expenses will be apportioned between the parents in accordance with their respective incomes.”