Month: June 2025

“The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. This even applied when the children were reluctant to see a parent, which is not the case here.

Then as now, the Court is tasked with viewing what is in the best interests of the child, not the parents.  The maximum contact principle was mandatory, but not absolute.  The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the court could restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. and Casselman v. Noonan, 2017 ONSC 3415.

Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time.  Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time.  It may not. Each family is different, and the principle is a guide set out to benefit children:  Knapp v. Knapp, 2021 ONCA, per Benotto J.A.”

          Theriault v. Ford, 2022 ONSC 3619 (CanLII) at 17-20

“There is no definition of “habitual residence” in the Hague Convention; it is a question of fact to be determined. The Supreme Court of Canada, in Balev, has provided some much-needed guidance. It has indicated that a “hybrid approach” must be taken in determining where a child habitually resided, which focuses not only on the parents’ intentions or the child’s circumstances but requires the judge to look at all relevant considerations arising from the facts of the case at hand:  Balev, at para. 42.

In adopting the hybrid approach, the application judge should determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the retention. The judge should consider all the relevant links and circumstances, including the child’s links, in this case, to both Mexico and Ontario, and the circumstances of the move to Mexico. The judge should consider the duration, regularity, conditions, and reasons for the child’s stay in Mexico, as well as the child’s nationality. No single factor should dominate the analysis, but the judge should consider the entirety of the circumstances: Balev, at paras. 43-44.

The age of the child at issue is also relevant. If a child is an enfant, then the child’s environment is determined by reference to those with whom the child lives and by whom the child is looked after and cared for. When the child is an infant, the circumstances of the parents, and their intentions, are important. The parental intention though is not determinative, but it can be an indicator capable of complementing a body of other consistent evidence. It depends on the circumstances of the case: Balev, at para. 45; Ludwig, at para. 32.

In Knight v. Gottesman, 2019 ONSC 4341, 147 O.R. (3d) 121, Justice Shore reviewed the decision of the Nova Scotia Court of Appeal in Beairsto v. Cook, 2018 NSCA 90, 17 R.F.L. (8th) 1, which was released after Balev. In Beairsto, the mother was the child’s only caregiver at the relevant time. The appellate court found that the Mother’s place of residence dictated the child’s place of residence. The Court of Appeal considered that the mother had no family or support network in Washington, which was the competing jurisdiction. It also considered that she was only in Washington on a six-month visitor’s visa. They found that there was no permanency to her move to Washington. In these circumstances, the court found that Nova Scotia was the habitual residence of the child.”

            Routley v. Palomera, 2022 ONSC 3557 (CanLII) at 64-67

“The [Family Responsibility and Support Arrears Enforcement Act, 1996,] provides for the enforcement of support orders using means beyond those available to enforce orders for the payment of money in purely civil proceedings and gives support orders priority over such orders.  Section 1(1) of the Act defines a support order as follows:

1 (1) In this Act,

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

…

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

On behalf of Ms. Rutledge, Ms. Prescott makes a procedural argument that I believe should be dealt with before turning to the substantive arguments. She submits that Mr. Taillefer should not be allowed to raise the applicability of the Act because he never sought that relief in any notice of motion.

I am unable to accept this argument. While it is true that neither the contempt nor the breach motion sought an order that costs be enforced as support, they did seek costs. Where costs clearly do relate to support, there is no requirement of which I am aware, nor was I referred to any by counsel for Ms. Rutledge, that the party to whom costs are awarded must plead the Act in order to claim the benefit of it.”

          Rutledge and Taillefer, 2024 ONSC 3359 (CanLII) at 6

“When interpreting the Final Order, the court must ascertain the mutual intentions of the parties when they entered into this consent agreement, as determined by the wording of the Final Order.  Absent ambiguity, the court will give plain and ordinary meaning to the words chosen by the parties. The material provisions must be interpreted in harmony with the other provisions in the Final Order. In this case, the court will interpret the Final Order along the same principles of contractual interpretation as would be used for a contract or, more particularly, a settlement agreement.  This is because the parties prepared the terms of the Final Order to reflect the terms of their full and final settlement agreement. Accordingly, I shall approach the issue of interpretation using the same framework the courts use for contractual interpretation within the family law context: see; e.g.:  Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; Consolidated-Bathurst v. Mutual Boiler, 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888.”

          Duffy v. Duffy, 2024 ONSC 3339 (CanLII) at 26

“Courts have traditionally discouraged the variation of interim orders on an interim basis pending trial unless the circumstances are urgent.  The preferable approach is to get the matter on to trial.  However, that is not to say that it can never be done.  For example, very recently in Michael v. Michael, 2024 ONSC 3107, Coats J. changed a spousal support order made earlier in the case, in advance of trial.  In so doing she found that the payor had established a strong prima facie case for a material change in circumstances, because there had been a significant decrease in the payor’s income and an increase in the recipient’s.  She found that neither had significant assets or debts, that continuing the Order would cause financial hardship as both parties were in similar financial circumstances, and the support order was almost all of the payor’s current income.  She found that it would be “incongruous and absurd” to continue the spousal support Order, as the recipient’s income was higher than the payor’s, and the payor did not have the capacity to pay:  see ¶ 10-18.”

D.N. v. A.N., 2024 ONSC 3330 (CanLII) at 75

“Although not specifically provided for in the Family Law Act, R.S.O. 1990, c. F.3, this court has jurisdiction to award an advance against equalization:  Zagdanski v. Zagdanski, 2001 CanLII 27981, at paras. 22-38.

Before such an advance is ordered, I should consider the following:

a.   Whether there is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

b.   Whether there is some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;

c.   Whether there is a reasonable requirement for the funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and

d.   Whether there are other circumstances such that fairness requires some relief for the moving party, such as a delay in the action, deliberate or not, prejudicing the moving party by, for example, running of their costs.

See Zagdanski, at para. 39; Firestone v. Pfaff, 2012 ONSC 4909, at para. 24.”

Parente v Parente, 2023 ONSC 3502 (CanLII) at 10-11

“There are too many litigants coming to court and demanding that the only way to respect Canada’s responsibilities as a signatory to the United Nations Convention on the Rights of the Child, Article 12, is for the judge to order that an independent professional assessor become involved and interview the child, regardless of the individual circumstances of the case.  That is clearly wrong.  Such a submission is not justified by the Convention itself, or by any provision in the Divorce Act, or by any binding jurisprudential authority that I am aware of.  Such a submission is an oversimplification that derogates from the plain wording of the legislation itself, in that Parliament could have worded section 16(3)(e) of the Divorce Act differently so as to specify how, or in what evidentiary form, a judge should meet the mandatory requirement to consider the child’s views and preferences, except where they cannot be ascertained, in determining that child’s best interests.  Parliament chose not to do so.  One might reasonably conclude that the choice not to was informed by considerations that include limited resources on the part of families, limited resources on the part of the Office of the Children’s Lawyer, and the desire not to hold a child in limbo while we wait for something from a third party that may not be necessary.”

          A.S. v. D.S., 2024 ONSC 3928 (CanLII) at 9

“A helpful and succinct statement of the law regarding the enforcements of settlement agreements is found in Zaidi v. Syed (Estate), 2023 ONSC 1244, at para. 13, aff’d 2024 ONCA 406, a case involving a settlement agreement parties reached in connection with an estates dispute:

[12] The law associated with the enforcement of settlement agreements, which is an aspect of the well-settled law of contract, is also well settled…

[13] A settlement agreement is a contract, and the court has jurisdiction at common law and under rule 49.09 to enforce settlements. A motion to enforce a settlement involves two elements. The first element is whether or not there is any genuine issue about the existence of an agreement to settle, and the second is to determine whether there is any reason not to enforce the settlement.

[14] For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon. However, it is not necessary to have reached agreement on incidental matters, such as the method of payment or the exchange of releases.

[15] There is a strong presumption in favour of the finality of settlements; however, a settlement agreement is a contract and is subject to the law of contract formation, and a settlement agreement can be set aside in the same way that a contract may be rescinded for mistake, fraud, innocent misrepresentation, duress, undue influence, or unconscionability. [Emphasis added, footnotes omitted.]

I should add here that in family cases, settlements can also be set aside under s. 56(4) of the Family Law Act.”

Ali v. Mumtaz, 2024 ONSC 3216 (CanLII) at 36-37

“To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies:

(1)The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a)  The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)  Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)  Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)  The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)  Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.”

            Colucci v. Colucci, 2021 SCC 24 (CanLII) at 113-114

“Generally, a litigant will not be permitted to continue with proceedings where a costs order remains unfulfilled: Munro v. Canada (Attorney General) (1994), 1994 CanLII 7517 (ON SC), 120 D.L.R. (4th) 746, at paras. 9, 12.  Justice Dunphy summarized the principles that guide the court’s exercise of discretion under these rules, which include that:

a.   where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused;

b.   the right of access to the courts must be accompanied by the responsibility to abide by the Rules of Civil Procedureand to comply with orders of the court; and

c.   the court ought not to sit in appeal of the prior cost awards as seeking relief against prior costs orders constitutes a collateral attack on orders previously made: Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50.”

Wilcox v. Abittan, 2024 ONSC 3180 (CanLII) at 10