Month: December 2025

“The Applicant relies on a number of cases in which the Superior Court of Justice has ruled that it does not have jurisdiction to vary a final order made by the OCJ as the subject separation agreement constitutes a final order of that court through the statutory mechanism provided by s.  35 of the FLA, and the OCJ has affirmed its exclusive jurisdiction to vary a s. 35 FLA order:  Ridley v. DeRose, 2015 ONSC 5635; Houle v. Trottier, 2012 ONSC 786, rev’d on different grounds, 2012 ONSC 6661 (Divisional Court); Doherty-Mulder v. Mrowietz, (2003), 43 R.F.L. (5^th) 313 (Ont. S.C.), 2003 CanLII 5374; Maves v. Whitsitt, 11 R.F.L. (7^th) 399, 2011 CarswellOnt 11869 (Ont. S.C.); Sadowski v. Sadowski, 2011 ONCJ 403; Gow v. Gow (1989), 1989 CanLII 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.); Stafichuk v. Iaboni, 2012 ONCJ 785.

In Maves, the Divisional Court overturned the motion judge’s determination that the Superior Court of Justice lacked jurisdiction to hear an application for corollary relief under the Divorce Act (in the face of a separation agreement that was filed with the OCJ under s. 35 of the FLA) on the basis that the application was not to vary the OCJ order but was a stand-alone independent application.  The Divisional Court stated, at paras 10 – 13:

[10]  The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s. 37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s. 15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.

[11]  The hearing judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court…..

[12]  In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the separation agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.

[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather it supplants and supersedes the order under the provincial statute. See Pantry vs Pantry 1986 CanLII 2537 (ON CA), [1986] O.J. No., 2347 (Ont. C.A.) at para. 7. (emphasis added)”

Nodder v. Wasserman, 2023 ONSC 6982 (CanLII) at 24-25

“The Applicant relies on the ten-year limitation period under s. 4 of the Real Property Limitations Act, and submits that, as more than ten years has expired since the date of separation, the Respondent’s claim of a resulting trust is statute-barred.

Section 4 of the Real Property Limitations Act states, in material part:

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

In McConnell v. Huxtable, 2014 ONCA 86, the court held that s. 4 of the Real Property Limitations Act applies to claims based in unjust enrichment seeking to impose a remedial constructive trust over real property within the context of a family law dispute.  By the same rationale, the same limitation period applies to claims seeking a resulting trust over real property within a family law dispute (or a civil dispute for that matter) (see McConnell, at para. 29, quoting from Hartman Estate v. Hartman Holdings Ltd. (2006), 2006 CanLII 266 (ON CA), 263 D.L.R. (4th) 640 (Ont. C.A.)).

In McConnell at paras. 54 and 52, the Court of Appeal stated, albeit in the context of an constructive trust case, that “ordinarily the claim should be taken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation”  because “[i]n the family law context, this [discovery of the claim] may typically occur on the date of separation, when shared assets, including real property, are divided and the possibility therefore arises of one party holding onto more than a fair share”.

The key issue is what is the triggering date for the commencement of the ten-year limitation period.  Both parties have operated under the assumption that the triggering date is the date of separation.

I agree with this conclusion.  As at the date of separation, the Respondent knew that the Applicant was a joint tenant of the Property with him and could exercise a right to request a partition and sale as part of a request for division of assets.  It is uncontested that he had the facts that gave rise to his claim of resulting trust as at that date.

The limitation period commenced on the date of separation in the circumstances of this case, since that is the date upon which the family property is to be divided, and the possibility therefore arose that the Applicant would assert ownership over the Property. The date of separation is when the Respondent’s right to bring a proceeding first accrued, consistent with McConnell.

The date of separation is August 17, 2012.  The Respondent’s factum (reflecting first notice of the claim) is undated but was delivered just prior to the return of the motion. His Answer, pleading a resulting trust, is dated July 31, 2023.  More than ten years have passed since the agreed upon date of separation.

As more than ten years since the date at which his right to bring a proceeding accrued has lapsed prior to the Respondent bringing his proceeding claiming a resulting trust in his Answer, this claim is, in any event, barred from proceeding under s. 4 of the Real Property Limitations Act. As a result, there is no genuine issue requiring a trial as relates to the resulting trust claim.”

Hutton v. Wakely, 2023 ONSC 6964 (CanLII) at 60-61, 64-70

“Most of the caselaw provided to the court regarding the reasonableness of a payor’s decision to retire is found in the context of motion to change proceedings.  That is, in those cases the court was asked to decide whether the payor’s voluntary decision to retire constituted a material change in circumstances warranting a reduction or termination of spousal support.  Although not a motion to change proceeding and this court is tasked with determining the appropriate quantum of spousal support payable at first instance rather than the materiality of a change in circumstances (i.e. retirement), the following themes and principles identified within the caselaw provided are of assistance to the court:

1. 1. 1. 1.    A payor cannot voluntarily retire early in an effort to frustrate a spousal support obligation. It is appropriate to impute income in such circumstances:  Teeple v. Teeple, 1999 CanLII 3127 (ON CA), [1999] O.J. No. 3565 (Ont. C.A.), at para. 9.
         2.    Voluntary retirement, even if not intended to frustrate a spousal support obligation, does not give automatic right to a reduced spousal support obligation.  Voluntary retirement may constitute intentional unemployment.
         3.    There is no set age at which people expect to cease working:  Bullock v. Bullock, 2004 CanLII 16949 (ON SC), [2004] O.J. No. 909 (Ont. S.C.).
         4.    The effect of voluntary retirement due to a purported medical inability to work is entirely dependent on the specific facts of each case: Hesketh v. Brooker, 2013 ONSC 1122, at para. 22.
         5.    Even in the face of retirement, a spouse’s ability to pay may include his or her capacity to earn an income, either in the job he has chosen to leave or from other employment following retirement: Hickey v. Princ, 2015 ONSC 5596, at para. 60.”

Cornale-Picone v. Picone, 2024 ONSC 6880 (CanLII) at 23

“Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

The jurisdictional test for granting a summary judgment is that there is no genuine issue requiring a trial, and at the heart of this test is a judicial gut check. Although she did not put it in quite that way, in Hryniak v. Mauldin at paras. 49 and 50, Justice Karakatsanis noted that in the context of an adversarial system, if a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial. She expressed this sentiment, as follows:

1. 1. 1. 1. 49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
            50. These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Part of this confidence or gut check that a summary judgment is fair and just is achieved if the judge is satisfied that he or she can justly and fairly decide the matter without the advantages of participating in the dynamic of a trial, where witnesses testify in their own words and can be observed through the rigors of both examination-in-chief and cross-examination, and where the judge has an extensive exposure to the evidence and sees the case unfold without having to piece it together in chambers working from affidavits, transcripts, and factums.

Although in Hryniak v. Mauldin the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course: Gubert v. 1536320 Ontario Limited, 2015 ONSC 3294. Where there are genuine issues for trial and the court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47; Yusuf v. Cooley, 2014 ONSC 6501; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.”

            Levac v. James, 2016 ONSC 7727 (CanLII) at 132-135

“As a general rule, a court will only permit a deduction for notional tax and disposition costs if it is more likely than not, on the evidence, that such costs will be incurred: See Long v. Long (1994), 1994 CanLII 18215 (ON SC), 8 R.F.L. (4th) 269 (Ont. Gen. Div.); ​ Gomez-Morales v. Gomez-Morales (1990), 1990 CanLII 12307 (NS CA), 30 R.F.L. (3d) 426 (N.S. C.A.); ​ Starkman v. Starkman (1990), 1990 CanLII 6793 (ON CA), 28 R.F.L. (3d) 208 (Ont. C.A.); ​and Leeson v. Leeson (1990), 1990 CanLII 12281 (ON SC), 26 R.F.L. (3d) 52 (Ont. Dist. Ct.).

The issue of notional costs of disposition was reviewed in the Ontario Court of Appeal’s decision in ​ Sengmueller v. Sengmueller. 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (Ont. C.A.). According to Justice McKinlay at p. 215:

In my view, it is equally appropriate to take such costs [i.e. tax consequences] into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as a deduction of a liability: the result is the same. While these costs are not liabilities in the balance-sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves.

Justice McKinlay went on to explain at p. 216:

If assets are transferred in specie or are realized upon to satisfy the equalization payment, the amount of tax and other disposition costs is easily proven, assuming the availability of a preliminary calculation of the equalization payment. The real problem arises when the equalization payment is satisfied with liquid assets not subject to disposition costs, and there are other assets to be valued for the purposes of s. 4(1) which will inevitably be subject to disposition costs at some time in the future. Two questions then arise: First, in what circumstances should disposition costs be deducted, and second, how should the amount of the deduction be calculated?

According to Justice Czutrin in the case Hawkins v. Huige,  2007 CarswellOnt 6762 (Ont. S.C.), the Court of Appeal’s decision in Sengmueller, has come to stand for the following propositions (paras. 101-102):

1)            notional costs of disposition are to be deducted as long as it is clear that these costs will be incurred;

2)            if the costs of disposition are so speculative that they can safely be ignored based on the evidence presented, they should not be considered; and

3)            the circumstances of each case should determine how notional income tax and disposition costs should be calculated.

The Court of Appeal in Sengmueller, noted that RRSPs are “taxable in full, regardless of the time of realization and regardless of whether they are cashed in full or taken by way of annuity” (at p. 218).  It is now generally accepted that RRSP funds, like pensions, will be reduced by a reasonable amount to account for the income tax ultimately payable when brought into income: Lackie v. Lackie, 1998 CarswellOnt 2200 (Ont. Gen. Div.); Appleyard v. Appleyard (1998), 1998 CanLII 4974 (ON CA), 41 R.F.L. (4th) 199 (Ont. C.A.); and Hawkins, at para. 101.

In the current case, the Respondent’s RRSPs are taxable, and they have been collapsed.  For these reasons, they satisfy the threshold for a deduction based on notional disposition costs.

The court in Virc v. Blair 2016 ONSC 49, at para. 198 stated:

Courts have adopted various approaches to deal with the lack of evidence in these cases. In some cases, the Court will allow a deduction in the absence of any evidence and will simply insert a percentage without further discussion. In other cases, a deduction may be allowed but at a reduced rate. However, in some cases the Court disallows the deduction altogether due to lack of evidence. Courts have considered hindsight evidence of post-separation tax rates and actual costs of disposition incurred when RRSPs were sold after separation but before trial: Ibid, citing Stacie R. Glazman & Susan Blackwell, “New Developments in Disposition Costs and Why They Matter” (2014), 33 C.F.L.Q. 49 (WL).

In Hawkins v. Huige, the wife proposed the tax rate of 30% be used for both parties’ RRSPs.  Justice Czutrin concluded that while 30% “may appear reasonable, it does not take into account future contingencies and the present values given the age of the parties.”  Disappointed that neither party had provided reliable evidence as to likely disposition dates and the present value of any possible future disposition, Justice Czutrin decided to allow a 23% notional tax reduction on all potentially taxable assets, being half the current top marginal rate of 46%.  Justice Czutrin expressed: “Absent reliable evidence and following case law, I find this is the fairest way to deal with this issue for both parties” (para. 112).

In Ali v. Williams, 2008 CarswellOnt 1757 (Ont. S.C.), Justice van Rensburg allowed disposition costs on both parties’ RRSPs, as a result of the Court of Appeal’s decision in Sengmueller v. Sengmueller, noting: “Costs of disposition should be calculated in particular with respect to RRSPs which will be subject to tax whether they are cashed in or received subsequently as an annuity” (at para. 102).  Justice van Rensburg used the tax rate of 25% for both parties.

I have applied a notional disposition cost of 25% for the Respondent’s RRSPs which is fair and proportionate.”

M.A. v. J.M., 2023 ONSC 6876 (CanLII) at 127-136

“Specific performance of an agreement is an equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 29, leave to appeal refused, [2015] S.C.C.A. No. 50; Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 22, leave to appeal refused, [2019] S.C.C.A. No. 420. As the Supreme Court instructed in Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415, at para. 22, specific performance should not be ordered automatically as the default remedy for breach of a contract for the sale of lands, “absent evidence that the property is unique to the extent that its substitute would not be readily available” or absent “a fair, real and substantial justification” for the claim to specific performance.

The overarching question is whether the land rather than its monetary equivalent better serves justice between the parties: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, 25 R.P.R. (6th) 177, at paras. 69-71; Dhatt v. Beer, 2021 ONCA 137, 68 C.P.C. (8th) 128, at para. 42. The governing factors that typically inform the determination of that question include: the nature of the agreement and the property, the objective uniqueness of the agreement and the property, and their subjective uniqueness to the purchaser at the time of purchase; the adequacy of damages as a remedy; and the behaviour of the parties having regard to the equitable nature of the remedy: Matthew Brady, at para. 32; Lucas, at para. 71.  This discretionary determination is a fact-specific inquiry that requires a consideration of all the particular circumstances and the equities of the case: Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 55; Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2021 ONCA 201, 32 R.P.R. (6th) 1, at para. 288.”

            Gill v. Gill, 2024 ONCA 877 (CanLII) at 15-16

“The legal test to decide the appropriate remedy where privileged information is received by an opposing party or its counsel is set out in Celanese and more recently, in Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61. The Ontario Court of Appeal, set out a three part test for resolving issues of unauthorized access to privileged documents; 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 694, at para. 11-16:, citing Continental and Celanese,:

a.   At the first stage, the moving party (in this case, the husband) must establish that the opposing party (in this case, the wife) obtained access to relevant privileged material. In this case, the wife has acknowledged that she had privileged documents, but states she deleted them. Without the forensic review of what was taken by the wife surreptitiously, it is impossible for the husband to know the extent of privileged materials that she ahs obtained.

b.   At the second stage, the risk of significant prejudice is presumed and the husband does not have the onus of proving “the nature of the confidential information” disclosed: Celanese, at paras. 42 and 48. Rather, the wife has the onus to rebut the presumed prejudice flowing from receipt of privileged information: Celanese, at para. 48. The presumption of prejudice can be rebutted by the wife identifying “with some precision” that: (i) she did not review any of the privileged documents in their possession; (ii) she reviewed some documents, but they were not privileged; or (iii) the privileged documents reviewed were nevertheless “not likely [to] be capable of creating prejudice”: Celanese, at para. 53. The evidence must be “clear and convincing” such that “[a] reasonably informed person would be satisfied that no use of confidential information would occur”: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1260-63; see also, Celanese, at para. 42. “A fortioriundertakings and conclusory statements in affidavits without more” do not suffice: MacDonald Estate, at p. 1263.

c.   Where the precise extent of privileged information is unknown and possibly unknowable, the court should infer that confidential information was imparted unless the solicitor has satisfied the court that no information was imparted which could be relevant: MacDonald Estate, at p. 1290. The husband cannot assess what has been taken from him, without a third-party review of the electronic records being conducted. Once a complete review of the computers is undertaken, and depending on the outcomes of that review, the husband may be entitled to seek a stay of proceedings or seek to remove the wife’s legal team. The scope of what was taken by the wife cannot yet be determined. As summarized in Celanese, at paras. 49-51, there are compelling reasons for thepresumption of prejudice and the reverse onus on the appellants in receipt of privileged information including:

 i.   Requiring the husband whose privileged information has been disclosed or accessed to prove actual prejudice would require them to disclose further confidential or privileged materials;

ii.   Placing the burden on the wife who has access to the privileged information is consonant with the usual practice that “the party best equipped to discharge a burden is generally required to do so”; and

iii.  The husband does not have to bear “the onus of clearing up the problem created by” the wife’s actions.

d.   The third stage of the analysis is to fashion an appropriate remedy.

It is only after there is a complete record of the extent of the surreptitiously obtained evidence by the wife, through the forensic audit that the three-part test to determine the admissibility of that evidence can be applied, as set out in in Eizenshtein v. Eisenshtein, 2008 CanLII 3108 (ONCS).

            Moran v. Moran, 2023 ONSC 6832 (CanLII) at 15-16

“Section 79(4) of the CYFSA stipulates as follows:

Child 12 or older

(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

Section 79(6) clarifies that a child who receives notice of a proceeding is entitled to participate as if the child were a party.

Despite the children in this matter being 12 and 14 years old, respectively, they had not been served with the society’s application or the society’s motion for temporary care and custody. Nor is the society requesting an order relieving against that obligation on the basis that being present at the hearing would cause either child emotional harm.

A stated purpose of the CYFSA is to recognize that services to children and young persons should be provided in a manner that includes the participation of a child or young person, where appropriate: s. 1(2), para. 3.vi. Sections 79(4) and (6) serve an important function and recognize that older children and young persons have both the ability and right to meaningfully participate in protection proceedings with significant and life-altering impacts for them.

When a society intervenes to remove a child to a place of safety, it is under significant and unenviable pressure to move quickly to both meet the practical needs of the children and to comply with its duty to bring the matter before the court as soon as practicable, but within five days. That said, the statutory requirement to notify older children of the proceeding is not optional and cannot fall victim to these exigencies. It must be respected and complied with.

Where the society is of the view that notice to a child 12 or older is inappropriate and seeks relief against it, then that request should be brought to the court’s attention as soon as possible, and ideally before the first hearing date. It is not for me to prescribe a universal process for the society to follow, and local considerations may well have an impact, but I would think that the most appropriate and efficient way to do so is to file an urgent, without notice motion, to the attention of the judge who is scheduled to preside at the initial temporary care and custody hearing. Alternatively, guidance could be sought from the court directly at the same time the society is seeking dates for the hearing.

I appreciate that in the early days of a child protection application, the society’s investigation is ongoing, and the factual landscape is often in flux. I recognize that at times, the society may have no alternative but to make an oral motion before the court at the time of the hearing, based on the most recently available facts.

Here, as noted, the society is not making such a request. Notice to the children is required. This temporary care and custody hearing shall be adjourned to December 5, 2024, at 9:00 am in order that the society may serve the children with notice of the proceeding and facilitate their attendance, should they wish, at the temporary care and custody hearing. The participants may attend virtually or in person at that time.”

Children’s Aid Society of the Districts of Sudbury and Manitoulin v. P.B., 2024 ONCJ 621 (CanLII) at 3-10

“When children are wrongfully removed from non‑party states and brought to Ontario or another Canadian province or territory, the Hague Convention does not apply. To address international abductions falling outside the scope of the Hague Convention, Canadian provinces and territories have enacted various statutory regimes (see, e.g., Family Law Act, S.B.C. 2011, c. 25 (British Columbia); Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E‑14 (Alberta); The Children’s Law Act, 2020, S.S. 2020, c. 2 (Saskatchewan); on the application of the Civil Code of Québec to non‑Hague Convention cases, see Droit de la famille — 131294). In Ontario, the relevant rules are found in Part III of the CLRA.

A review of legislation in this area reveals that, in general, Canadian provinces treat child abductions in non‑Hague Convention cases in a manner methodologically comparable to the Convention: first, by declining to decide parental disputes on the merits with respect to children who do not habitually reside in the province or territory, and second, by favouring the return of children to the jurisdiction of their habitual residence. However, these similarities do not mean that an application brought under provincial legislation is treated the same way as one brought subject to the rules of the Hague Convention (Geliedan, at paras. 26-34).

In Thomson, a Hague Convention case, this Court clarified that the legislation governing non‑Hague and Hague Convention disputes “operate independently of one another” (p. 603; see also L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111, at para. 46). As pointed out by Laskin J.A. in Ojeikere, in Hague Convention cases, “Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests”, but they cannot have the same confidence in cases involving non‑party jurisdictions (para. 60; see also Geliedan, at paras. 37-38 and 45). The Ontario legislature makes plain, in s. 19(a) of the CLRA, that the ultimate determination of a parenting order on the merits will be made on the basis of the best interests of the child. To account for the fact that, in the non‑Hague Convention context, Ontario courts do not benefit from the a priori assumption that the best interests of the child principle will be applied to the merits of the custody dispute in the foreign country, judges assessing petitions for return to non‑party jurisdictions must therefore consider the tenor of foreign law, generally through expert evidence adduced by the parties. Nevertheless, in Thomson, La Forest J. explained that it is not improper to look at the Hague Convention for the interpretation of domestic legislation, “since the legislature’s adoption of the Convention is indicative of the legislature’s judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence” (p. 603; for the CLRA, see N. Bala, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 C.F.L.Q. 301, at p. 308).

The children in this case have been removed from the UAE, a state which is not a party to the Hague Convention. It follows that this matter should be resolved on the basis of the general provisions of Part III of the CLRA.”

            F. v. N., 2022 SCC 51 (CanLII) at 51-54

“The father issued his motion to change on March 23, 2023. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). The change in support requested by the father before that date requires a retroactive support analysis.

The parties’ motions to change support are governed by subsection 37 (2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(2.1)  In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

The powers of the court on a motion to vary a child support order are very broad.  The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis.  The court’s authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyer v. Content, 2014 ONSC 6001.

A child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility. See: Colucci v. Colucci, 2021 SCC 24, par. 4 (Colucci).

In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following observations about retroactive support that are germane to this case:

a)      Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).

b)      The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).

c)      Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).

The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci as follows:

(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.

The court in Colucci set out the framework for deciding applications to increase support retroactively at paragraph 114 as follows:

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 refers to the following factors to consider as set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

In Colucci, the court discussed what constitutes effective notice when a payor seeks a retroactive decrease in income, writing the following at paragraphs 87 and 88:

[87]         It is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity.

[88] In decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51). This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13 (CanLII); Hodges v. Hodges, 2018 ABCA 197, at para. 10 (CanLII)).

In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel – par. 123.

If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, par. 125.”

            Sarreye v. Sheikhamed, 2023 ONCJ 525 (CanLII) at 48-66