“Counsel points to the comments of Justice Jain at paragraph 25 of Simcoe Muskoka Child, Youth and Family Services v. J.K et al, 2021 ONSC 1855, in which Her Honour confirmed that a temporary mental health breakdown does not pose a risk to the children if: concerns are being appropriately addressed; the parent is able to care for the child safely; and there is a safety plan in place. I agree with this analysis.”
Month: October 2025
October 30, 2025 – Family Violence: Part III
“The court notes the special provisions in subsection 24(4) of the Act relating to family violence. The following paragraphs provide further commentary about this significant issue.
The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:
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- The recent amendments to the Divorce Actrecognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
- The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
- Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).
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Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:
The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.
Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.
Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.
Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.
Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.
Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.
The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.”
October 29, 2025 – Non-Compliance With Practice Directions
“Non-compliance with a page, spacing, or font requirement of the Practice Direction undermines the direction given by the Chief Justice of this Court, interferes with the administration of justice because of the workload problems it creates for judges, and can result in unfairness to an opposing party who does comply with the Practice Direction.
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It appears to me that an express rule in both the Family Law Rules and the Rules of Civil Procedure, that conferred authority on the Court to hold lawyers to account for obvious breaches of the Practice Directions issued by the Chief Justice is the most practical solution. Given the frequency with which there is non-compliance with the Practice Direction, I would suggest this is a necessary rule amendment and recommend that the respective rules committees consider such an amendment.”
October 28, 2025 – Limitation Period Findings
“A finding that a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error: Fockler v. Spiegel, 2023 ONCA 148, at para. 25; Dass v. Kay, 2021 ONCA 565, at para. 29.”
Gomes v. Da Silva, 2024 ONCA 792 (CanLII) at 10
October 27, 2025 – Imputing Income
“Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
The jurisprudence for imputation of income sets out the following:
a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauliset out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
f) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.).
g) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 CanLII 26573 (ONCA).
h) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini,2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25931 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719.
i) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken[2003] O.J. No. 2780 (SCJ); Jonas v. Jonas[2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 (CanLII).”
October 24, 2025 – Family Violence: Part II
“In Ahluwalia v. Ahluwalia, 2023 ONCA 476, paras. 1, 99, 101, the Court of Appeal for Ontario recognized that: “the relatively recent addition of family violence considerations reflects Parliament’s awareness of and concern about the devastating effects of family violence on children” and that it is an important consideration when developing a parenting plan. The Court notes that family violence can have “widespread and intergenerational effects.” In Barendregt v. Grebliunas, 2022 SCC 22, para. 143 (citations omitted), the Supreme Court of Canada stated:
The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.
The Government of Canada explains that a child’s direct exposure to family violence (e.g., seeing or hearing the violence) or indirect exposure (e.g., seeing that a parent is fearful or injured) is itself recognized as family violence and a form of child abuse: Government of Canada, Department of Justice, The Divorce Act Changes Explained (23 February 2022).
As I discussed in S.S. v. R.S., paras. 31-47, the family violence provisions in both pieces of legislation are consistent with Article 19 of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990, accession by Canada 13 December 1991), which grants children the right to state protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”: In General Comment 13, the UN Committee on the Rights of the Child provides a similarly expansive definition of violence and identifies exposure to domestic violence and corporal punishment (including slapping and hitting) as forms of violence that impact children uniquely: General Comment 13: The right of the child to freedom from all forms of violence, UNCRC, 2011, UN Doc. C/GC/13. The Committee notes the devastating impact of violence on children’s survival and their “physical, mental, spiritual, moral and social development”: para. 15. It states that both the short- and long-term health, development, and behavioural consequences of violence against children and child maltreatment are widely recognized, and notes that “there is evidence that exposure to violence increases a child’s risk of further victimization and an accumulation of violent experiences, including later intimate partner violence”: paras. 15(a)-(b).”
October 23, 2025 – Child’s Views vs. Best Interests
“[the child] R.E. exercised his own autonomy in deciding to live at his father’s home and it may very well be that forcing the Respondent to bring proceedings to change the parenting order may have been a waste of money and judicial resources considering the child’s age of 16 years when he made that choice. As stated by Perkins J. in L.(N.) v. M(R.R.), 2016 ONSC 809 at para. 137:
If it is not already apparent from the preceding pages, I will say so expressly here: I have been struggling with how to balance or reconcile the powers and duties of the court under the Divorce Act to make custody and access orders in the best interests of the children, on the one hand, with, on the other hand, the children’s growing entitlement to personal autonomy and respect of their views and preferences.
The views and preferences of an older child often therefore result in an order that is not necessarily in that child’s best interests. The court must recognize that a 16 year old child has a great deal of autonomy and can make decisions that may not be best for him or her. However, the legislature in this province has confirmed the autonomy of a 16 year old child in legislation affecting children: for example under the Child, Youth and Family Services Act, the court’s ability to make a residential placement or an access order concerning a child over the age of 16 years is quite limited and most often requires the consent of the child.”
October 22, 2025 – Enforcing Domestic Contracts & Setting Them Aside
“The Cohabitation Agreement provided, and s. 53(2) of the Family Law Act confirms, that upon marriage, the Cohabitation Agreement became a marriage contract. In either case, the agreement is a “domestic contract” as defined in s. 51.
Public policy underpinning family law legislation supports the making of domestic contracts. Such contracts will not be lightly interfered with: Deroon v. Deroon, (1980), 115 D.L.R. (3d) 182 (Ont. C.A.); LeVan v. LeVan, 2006 CarswellOnt 5393 (Ont. S.C.J.) at para. 199, aff’d 2008 ONCA 388 (Ont. C.A.).
Courts should respect private arrangements made by spouses for division of their property on breakdown of their relationship, particularly where the agreement was negotiated with independent legal advice: Hartshorne v. Hartshorne, 2004 SCC 22 (S.C.C.) at para. 9.
There is no presumption that courts will be hesitant to enforce a pre-nuptial agreement: Dougherty v. Dougherty, 2008 ONCA 302 (Ont. C.A.). By the same token, there is no “hard and fast” rule that marriage contracts will be afforded greater deference than separation agreements: Hartshorne.
Section 56(4) of the Family Law Act permits a court to set aside a domestic contract, or a provision in it, (1) if a party failed to disclose significant assets or liabilities existing when the contract was made, (2) if a party did not understand the nature or consequences of the contract, or (3) otherwise, in accordance with the law of contract.
The onus rests on the party seeking to invalidate the domestic contract to satisfy one or more of the criteria in s. 56(4). Even where that threshold is met, the court has a discretion whether or not to set aside the agreement: LeVan v. LeVan at para. 33. A two-stage analysis is required.
In Virc v. Blair, 2014 ONCA 392 (Ont. C.A.), the Court of Appeal framed the analysis as follows:
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- Can the party seeking to set aside the agreementdemonstrate that one or more of the s. 56(4) circumstances is engaged?
- If so, is it appropriate for the court to exercise its discretion to set aside the agreement?
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In addition to s. 56(4), s. 33(4) of the Family Law Act permits the court to set aside a provision for support or a waiver of a right to support in a domestic contract if (1) the provision for support or waiver of the right to support results in unconscionable circumstances, (2) the provision or waiver is by or on behalf of a dependent who qualifies for an allowance out of public monies, or (3) there is default in the payment of support under the contract when the application is made.”
October 21, 2025 – Extending Limitation Periods
“The motion judge reasoned that summary judgment was available to dismiss the appellant’s claims largely because the limitation period for equalization claims set in the FLA had long expired.
Section 2(8) of the FLA provides:
The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay.
Each of the requirements must be met as a pre-condition to granting the relief: Vivier v. Vivier, 1987 CanLII 8339 (ON SC), 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The “relief” is not the extension of time but the relief claimed under the FLA such as equalization: Scherer v. Scherer (2002), 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (Ont. C.A.), at para. 16. In determining whether “apparent grounds for relief” exist, the court may make a limited inquiry into the merits of the proposed claim. The question to be answered is “[b]ut for the limitation period that acts as a bar, are there apparent grounds to support the claim?”: see Werth v. Werth, 2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay that has been incurred in good faith. The “good faith” requirement requires the applicant for an extension to show that they acted “honestly and with no ulterior motive”: Hart v. Hart (1990), 1990 CanLII 12268 (ON SC), 27 R.F.L. (3d) 419 (Ont. U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer substantial prejudice by reason of the delay. The mere showing of prejudice is not sufficient; rather, it must be demonstrated that the prejudice will be substantial. Generally, the length of time occasioned by the delay is a factor, along with the extent to which the responding party has rearranged their financial affairs: see e.g., Douthwaite v. Douthwaite (1997), 1997 CanLII 24487 (ON SC), 32 R.F.L. (4th) 90 (Ont. Gen. Div.).”
October 20, 2025 – International Child Abduction Cases: R. 37.2
“Rule 37.2 of the Family Law Rules applies to international child abduction cases. This rule came into force in October 2022.
Rule 37.2(2) states:
For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.
Subrule 2(2)-2(4) of the Family Law Rules addresses the primary objectives of the Rules, lists ways to deal with cases justly, and sets out the Court’s duty to promote the primary objectives.
Rule 37.2(3) requires international child abduction cases to be disposed of promptly, and if Article 11 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”) applies, no later than six weeks after the case is commenced.
The Court noted in O.M. v. S.K., 2020 ONSC 3611, at paras. 12-13:
The granting or refusing of an adjournment is a discretionary act. As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC) at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors. These factors include:
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- the overall objective of a determination of the matter on its substantive merits;
- the principles of natural justice;
- the need for justice not only to be done but appear to be done;
- the circumstances of the request for an adjournment and the reasons and justification for the request;
- the practical consequences of an adjournment on both substantive and procedural justice;
- the competing interests of the parties in advancing or delaying the progress of the litigation;
- any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
- whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
- the need of the administration of justice to process proceedings in an orderly fashion; and
- the need of the administration of justice to effectively enforce court orders.
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When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.
In Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, (2009) 96 O.R. (3d) 138, at para. 37, the Court of Appeal for Ontario provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:
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A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
In a case involving the Hague Convention, Leigh v. Rubio, 2022 ONCA 582, the Court of Appeal addressed the requirement to act expeditiously in the conduct of an application and hearing, stating at para. 20:
Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues.”