Month: August 2025

“A relocation is more likely to be approved “where the clear primary caregiver for a child seeks to relocate” and more likely to be denied if there is a shared parenting arrangement (see: Barendregt, at para. 121).

The applicable burdens of proof on a relocation application are as follows:

a.   where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests (see: Divorce Act, s. 16.93(1));

b.   where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests (see: Divorce Act, s. 16.93(2)); and

c.   in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests (see: Divorce Act, s. 16.93(3)).

Courts are generally reluctant to authorize relocation on interim motions and the burden of proof on such motions is on the party seeking to change the status quo to prove that sufficient compelling circumstances exist to justify the relocation (see: Markowski v. Krochak, 2022 ONSC 2497, at para. 75).”

            Shearhart v. Shearhart, 2023 ONSC 4931 (CanLII) at 17-19

“Further, at the application hearing, Ian advanced a resulting trust claim concerning his repayment of Victoria’s indebtedness under the joint line of credit. As I have already mentioned, the application judge concluded that a presumption of resulting trust did not arise in Ian’s favour because, in his view, a presumption of resulting trust can apply only on the purchase or transfer of property, and not to a post-purchase reduction of liabilities associated with the purchase or transfer of property.

As I see it, there are several difficulties with the application judge’s analysis of this issue.

First, Ian’s repayment of the $1 million line of credit, established to facilitate the purchase of the Brookdale property, was gratuitous and directly linked to the acquisition of the house. The Supreme Court emphasized in Kerr, at paras. 18 and 19, citing its earlier decision in Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at paras. 43-44 and 24, that in situations involving gratuitous transfers, as in this case, the governing consideration is the transferor’s actual intention. The intention of the transferor alone counts, as “[t]he point of the resulting trust is that the claimant is asking for his or her own property back”: Kerr, at para. 25. As Rothstein J. explained in Pecore, at para. 44, in such cases,

The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.

(Emphasis added) [page 716]

See, also, Andrade v. Andrade (2016), 131 O.R. (3d) 532, [2016] O.J. No. 2553, 2-2016 ONCA 368, at paras. 62 and 67. Further, it is the transferor’s actual intention at the time of transfer that is the critical consideration: Nishi v. Rascal Trucking Ltd., [2013] 2 S.C.R. 438, [2013] S.C.J. No. 33, 2013 SCC 33, at paras. 2, 30 and 41.

Kerr also instructs that, when a gratuitous transfer is made, the transferee bears the onus of demonstrating that a gift was intended. Failing such a demonstration, the transferred property is deemed to be held in trust by the transferee for the transferor, as beneficial owner.”

Chechui v. Nieman, 2017 ONCA 669 (CanLII) at 57-60

“Although it would no doubt further affirm the Minutes if the mother had negotiated through counsel, or obtained ILA, her lack of legal representation does not mean that the Minutes should automatically be set aside. In Pruss v. Pruss, 2000 CanLII 22454 (ON SC), [2000] O.J. No. 3662, the court upheld a separation agreement, despite the wife not having received legal advice. Granger J. noted that she had the knowledge she could obtain advice, and the opportunity to do so (at para. 28). Similarly, in Dereski v. Ellis, 2012 ONSC 5263, [2012] O.J. No. 4961, McEwen J. upheld Minutes of Settlement and the subsequent Order when negotiated by the husband after dismissing counsel. The court reviewed the emails between the husband and his spouse’s lawyer and found that the “give and take” and compromise between the parties suggested he knew the contents of the agreement well, despite not having counsel (at para. 25).”

              Armstrong v. Armstrong, 2021 ONSC 5774 (CanLII) at 44

“A parent has an obligation to support his or her dependent children: Family Law Act, R.S.O. 1990, c. F.3, s. 31(1).  A court is mandated to order child support payments in accordance with the appropriate child support guidelines, for the benefit of the child: Family Law Act, supra, s. 33(1)–(2), (7), (11)–(15); s. 34(1).

The presumptive quantum of support is the amount set out in the Child Support Guidelines, O.Reg. 391/97, s. 3(1).

A Court may make an order requiring a parent to contribute to a child’s “special” expenses: Child Support Guidelines, supra, section 7(1).

In court proceedings, parties face numerous obligations to provide prompt and full financial disclosure: Family Law Rules, supra, r. 13(1)–(1.1), (3.1)–(3.2), (5.0.2), (7).

A payor spouse has an ongoing obligation to disclose their income so that any child support payments properly reflect the amount owing under the Guidelines: Child Support Guidelines, supra, s. 24.1, s. 13(g).

Where a party fails to comply with the disclosure provisions of the Child Support Guidelines, the possible consequences to that party include:

a.   immediate judgment

b.  drawing of an adverse inference

c.   striking out of pleadings

d.   a contempt finding

e.   imputation of income

f.    costs on a full indemnity basis

Child Support Guidelines, supra, s. 19(1)(f), s. 22-24.

Similar consequences may flow from failing to comply with a disclosure order under the Family Law Rules: Family Law Rules, r. 1(8)-(8.1).”

            B.H.H. v. D.H., 2024 ONSC 4761 (CanLII) at 22-28

“Rule 61.06(1)(c) [of the Rules of Civil Procedure] permits ordering security for costs for “other good reason.”  As Jamal J.A., as he then was, stated in Heidari v. Naghshbandi, 2020 ONCA 757, 153 OR (3d) 756, at para. 23, any “other good reason” must be: (1) consistent with the purpose for ordering security — namely, that the respondent is entitled to a measure of protection for costs; and (2) fairly compelling, because the residual category is only engaged where the respondent cannot meet the requirements of rules 61.06(1)(a) or (b).” Examples include where the appellant has committed fraud, or taken steps to put assets out of reach such that it may be very difficult to collect costs.

I recognize that security for costs orders are not to be made routinely.  As Jamal J.A. noted in Heidari at para. 6:

Rule 61.06(1) requires a two-stage analysis: first, the respondent must show that they meet the terms of the rule; second, the motion judge must “take a step back” and consider the justness of the order sought in all the circumstances, with the interests of  justice at the forefront….In considering the justness of the order sought, relevant factors include, but are not limited to, the merits of the appeal, any delay in moving for security for costs, the impact of actionable conduct by the respondent on the available assets of the appellant, access to justice concerns, the public importance of the litigation and the amount and form of security sought by the respondent….An order for security for costs is intended to provide ‘a measure of protection’ to the respondent for the costs to be incurred on the appeal, without denying the appellant a chance to pursue an appeal. …. The court must ensure that an order for security for costs is not used as a litigation tactic to prevent a case from being heard on its merits. [citations omitted]”

            Hevey v. Hevey, 2023 ONSC 4864 (CanLII) at 21-22

“The onus is on the contemnor to demonstrate, on a balance of probabilities, that the contemnor has purged his contempt or made best efforts to do so. Mr. Boutin has failed to meet his onus.  If the contemnor fails to purge contempt, then the next step at a contempt hearing is to determine the appropriate penalty. See Stone v. Stone, 2019 ONSC 3214, at para. 18.

In Blatherwick v. Blatherwick, 2016 ONSC 4630, at para. 28, this court held that “the principal reasons for sentencing in civil contempt are to obtain compliance with court orders and to promote a society where the rule of law prevails.”

The court must also be mindful of the primary objective of the FLR, which is to deal with cases justly. See Stone supra at para. 20.

Deterrence is a sentencing goal to prevent further non-compliance by Mr. Boutin specifically and other parties involved in other family proceedings generally. Parties, in family proceedings and all civil proceedings, must know that there are serious consequences for the deliberate and flagrant disobedience of court orders and for failing to make complete and accurate financial disclosure.

Denunciation is also a sentencing goal to maintain confidence to parties in family law proceedings and the general public who use the justice system.  The  rule of law and the administration of justice is seriously undermined where parties can ignore statutory obligations or court orders.

Both goals are particularly important in family proceedings, where the failure to make complete and accurate financial disclosure undermines a just and fair resolution or court determination. And, of course, both goals are important in family proceedings to ensure a party does not take advantage of their failure to make financial disclosure, to hide and dispose of assets – with the intention of defeating or reducing the opposing party’s claim. Unfortunately, this is too common a practice which the court must do its utmost to denounce and hopefully, discourage others to follow.

Rule 31(5) of the Family Law Rules provides judges a wide discretion in imposing sentences for contempt.”

            Boutin v. Boutin, 2022 ONSC 4776 (CanLII) at 49-55

 “In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978 at paras. 57-58, the court set out the first part of the test:

The first part of the analysis in determining child support entitlement for adult children requires the court to ascertain whether the child is in fact still under parental charge. The analysis of this issue focuses in part on whether the child remains financially dependent on the parent (Rebenchuk, at para. 25; Thompson v. Ducharme, 2004 MBCA 42 (C.A.), at para. 14; P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 31). However, the case-law under both the Divorce Act and similar provincial child support legislation establishes that a child can also be under parental charge if they are unable to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 CarswellBC 119 (S.C.), at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459 (C.A.), at para. 6).

In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support (Briard, at paras. 29-30; Lougheed v. Lougheed, 2007 BCCA 389 (C.A.), at paras. 23 and 25; Moore v. Moore, 2014 BCSC 2210 (S.C.), at para. 103; E.B.L.P. v. J.G.S., 2020 BCPC 18 (P.C.), at para. 50).

The analysis must simply look at whether the adult child’s sources of income meet their reasonable needs. In deciding this, the court should also consider the reasonable expectations of the adult child in light of the means of the parents. In Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (CA), at para. 171 the court stated:

It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated.

The “causes” of the inability that are permitted under the Divorce Act

In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978, at para. 59, the court set out the second part of the test:

Assuming that the court determines that the adult child is under parental charge and unable to withdraw from that charge or to obtain the necessaries of life, the second part of the entitlement analysis requires the court to determine whether the child’s inability to do so is due to illness, disability, or “other cause.” Section 2(1)(b) of the Divorce Act leaves open the question of what “other cause” would justify an order that a child who is of the age of majority or older remains entitled to child support from a parent, and the case-law establishes that the phrase is to be interpreted broadly (Olson, at para. 14; K.M.R. v. I.W.R., 2020 ABQB 77 (Q.B.), at para. 37).”

            Brun v. Fernandez, 2023 ONSC 4787 (CanLII) at 11-13

“The Applicant seeks a preservation order under section 12 of the Family Law Act to make the Respondent solely responsible for the St Germain mortgages for a period of time.

The Applicant correctly notes that this Court’s jurisdiction under section 12 extends to mandating a spouse to make ongoing mortgage payments: Proc v. Proc 1992 CanLII 13991 (ON SC).

As a species of interim or interlocutory relief, a preservation order is subject to the following considerations:

a.   the relative strength of the moving party’s case;

b.   the balance of convenience (or inconvenience); and

c.   irreparable harm.

Bronfman v Bronfman, 2000 CanLII 22710 (ON SC) at para 28.

Bronfman, supra, further states the following propositions:

a.    Section 12 is intended to “protect the spouse’s interests under theFamily Law Act, so that if a spouse is successful in obtaining relief under the Act, there are assets available to satisfy that relief”;

b.    When considering “the relative strength of the plaintiff’s case” and the “balance of convenience (or inconvenience)” the court should consider the likelihood the moving party will receive an equalization payment and, if there is, any risk that the property will be dissipated prior to trial; and

c.    Determining the relative weight of the moving party’s case “is a delicate matter which will vary depending upon the context and the circumstances”, as well as “the degree of predictability which the factual and legal issues allow”.”

S.M. v. H.R., 2024 ONSC 4639 (CanLII) at 53-56

“The Applicant father submits that the CIBC RESP is the property of the parties and that this Court has the authority to split the jointly subscribed CIBC RESP into two plans such that each party would be the sole subscriber of a plan.

Leaving aside for the moment the issue of whether the CIBC RESP is the property of the parties, the Applicant did not identify the statutory authority to make the Order sought, although he did rely on Virc v. Blair, 2016 ONSC 49, 80 R.F.L. (7th) 124; Popovski v. Pirkova, 2017 ONSC 2363, [2017] O.J. No. 1888; Chong v. Donnelly, 2021 ONSC 5263, [2021] O.J. No. 4105; and Christakos v. De Caires, 2016 ONSC 702, [2016] O.J. No. 512.

In Christakos, the Court ordered that the parties shall equally divide any RESPs accumulated during the marriage on a 50/50 basis. However, this decision is not helpful as it appears to have been made on consent. There is no discussion in the decision of the circumstances or analysis that led to this relief being granted.

In none of the other cases relied upon by the Applicant did the Court split an RESP into two plans. Instead, in Virc and Chong, the Court indicated that withdrawals from an RESP could be used to offset their contributions towards section 7 expenses for post-secondary education expenses: See Virc, para. 425(b) and Chong, paras. 73, 75 and 76. Finally, Popovski states that nothing more than funds withdrawn from an RESP can be taken into account in apportioning a parent’s obligations to contribute to the cost of post-secondary education.

I am not satisfied that this Court has the legal authority to order that an RESP be split into two other RESPs. The Applicant father’s motion to split the CIBC RESP is dismissed.”

            Labatte v. Labatte, 2022 ONSC 4787 (CanLII) at 38-42

“Counsel agreed that, if parents cannot agree on which school their child should attend, and the court is called upon to make the decision, the best interests of the child govern. (Askalan v. Taleb, [2012] O.J. No. 3947 at para. 32 (S.C.J.))

In Thomas v. Osika, 2018 ONSC 2712 (CanLII), [2018] O.J. No. 3321 (S.C.J.), at paragraph 37, Justice Audet set out a number of general principles taken from the caselaw “to assist the decision-maker” when making a decision of this nature in the child’s best interests. They include:

a.   a consideration of the child’s unique needs, circumstances, aptitudes, and attributes;

b.   focusing on the interests of the child rather than those of the parents, or their rights;

c.   whether a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage;

d.   assessing any impact on the stability of the child, which may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new childcare providers or other unsettling features;

e.   a consideration of any problems with the proposed schools; and

f.   a consideration of the resources that each school offers in relation to a child’s needs, rather than on proximity of either school to the residence of one parent or the other, or the convenience that the child’s attendance at the nearest school would entail.”

Roberts v. Symons, 2023 ONSC 4757 (CanLII) at 49-50