Month: January 2026

“Temporary Orders establish or maintain a reasonable state of affairs pending Trial, when a full record will be available to the Court.

Courts are generally reluctant to change temporary Orders unless there are compelling circumstances for a change prior to Trial. This is particularly so with respect to parenting Orders given a broad consensus in the research that stable, “good enough” routines for children better meet their developmental needs for predictability and security than a serial schedule subject to the vicissitudes of the next litigation event.

At the same time, a Court is never powerless to act when a child is at risk, or when there are compelling reasons to do so in a child’s best interests.

When a compelling case for a change is established, the legal test(s) to be applied remains the same as was applied in the earlier motion. There is no requirement to show a material change in circumstances affecting the children, per Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, because the Application in which the change to a temporary Order is sought remains one of first instance.

I agree with Justice Mackinnon who stated at para. 23 of J.D. v. N.D., 2020 ONSC 7965, 50 R.F.L. (8th) 62, that in fact, there can be a good reason to lower the threshold for varying an interim parenting Order prior to Trial:

[23] In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”

          Balogh v. Balogh, 2025 ONSC 815 (CanLII) at 41-45

“An important function of the court is to ensure that the trial procedure is fair and balanced so that parties are able to fairly advance their positions and obtain a judgment based on the merits of the case.  It is not appropriate for a trial judge to simply swear in the witness and sit back and listen.  However, it is equally important that the trial judge maintain a neutral and impartial stance, both in appearance and actuality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 149-51.  There is sometimes a fine line between ensuring that the key evidence is before the case and constructing the case.  I was alert to not crossing that line.  It is ultimately up to the parties to determine what positions they will take and how they wish to advance those positions.

The Court of Appeal has emphasized this role in the context of trials where one or more litigant is self represented.  The trial judge is the gatekeeper and controls the court process.

The court is instructed by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, 2006 (the “Principles”).  The Principles provide guidance to trial judges, and also explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case, and to be respectful.  The Supreme Court of Canada in its decision, Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, endorses the Principles.

I adopted the following guidelines in presiding over this trial:

(a)    Explained the process and handed out a document entitled “Ontario Superior Court of Justice:  Overview of the Trial Process” (marked as Exhibit A);

(b)   Inquired as to whether both parties understood the process and procedure;

(c)   Provided information about the law and evidentiary requirements (including providing excerpts from the Divorce Act (marked as Exhibit M)), and invited the parties to read specific leading cases relevant to the issues that they wished me to rule on while emphasizing that they should research and rely on any other caselaw they felt relevant to their respective positions;

(d)   Questioned the Father and Mother once they had provided their evidence in chief to ensure that key documents were tendered by way of exhibits, and to ensure, in a neutral and impartial way, that the parties provided their basic positions concerning each of the issues advanced in their viva voce evidence.  The parties were each cross-examined after I concluded my questioning: Principles, B.4; Cicciarella v. Cicciarella (2009), 2009 CanLII 34988 (ON SCDC), 252 O.A.C. 156 (Ont. Div. Ct.), at paras. 35-45;

(e)   The parties were provided the weekend to prepare their respective closing submissions after receiving further direction from me.”

          Elyasian v. Elyasian, 2024 ONSC 623 (CanLII) at 25-28

“As stated by Justice Gordon in Bousfield v Bousfield, 2016 ONSC 3145 (CanLII), at para. 15:

                   Disclosure

(a) each party is required to serve a financial statement and make full and frank financial disclosure (Rule 13, Family Law Rules, and section 21, Child Support Guidelines);

(b) the onus is on the support payor to accurately disclose his income, not on the support recipient to obtain the relevant information;

(c) the failure to provide disclosure may lead to severe sanctions; and

(d) the court may draw an adverse inference against a party who has failed to comply with the obligation to provide disclosure and may impute income to him as considered appropriate (Section 23, Child Support Guidelines).

In the case of Brown v. Silvera, 2009 ABQB 523, Justice Moen dealt with the requirements for full and accurate disclosure in circumstances where parties were attempting to negotiate a separation agreement for their property. In my view her comments apply equally to parties trying to assess their position within litigation in order to obtain the proper level of child support. Moen J. stated at para. 41:

I adopt the reasoning of Justice Erb in Fercho v. Dos Santos, at paras. 40 and 45. She held that parties to a separation agreement are not expected to engage in a “scavenger hunt”, to unweave “a complex web of corporate or other intrigue” or to “make huge expenditures to untangle complex corporate structures” just to ascertain family assets. Justice Erb stated that behaviour of concealing assets is not to be encouraged. I agree.

When making a determination of what income is available for child support, the court must consider all of the factors set out in the Child Support Guidelines, O Reg 391/97. The starting point is the Objectives set out in s.1:

1. 1. 1. 1. 1.     The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

The objectives of the Guidelines must guide the court’s interpretation of all remaining sections. The emphasis must be on establishing a fair standard of support which ensures that children benefit from the “financial means of their parents.”

In addition to the above comments I draw the parties’ attention to the following:

a.   Timely, accurate and complete disclosure is the foundation of family law.

b.   The Family Law Rulesmake it clear that cases must proceed in a manner that promotes the primary objective of the Rules and that is to enable cases to court to deal with cases justly.

c.   It is the duty of the Court to promote the primary object and the parties and their lawyers are required to help the court to promote the primary objective.

d.   Financial Statements must fully and accurately disclosure of a party’s financial situation and attach any documents to prove the party’s income that the financial statement requires.”

            Green v. Whyte, 2019 ONSC 323 (CanLII) at 5-9

  “Forget spiders or heights.  What’s really scary is having to appear in front of the same family court judge you recently misled on an ex parte motion.

 a.     Last time, you went behind the father’s back and complained dad was about to unilaterally change a long-standing status quo.

b.      Turns out, youwere the one secretly changing a long-standing status quo.

c.      You didn’t tell the judge you had already hatched a plan to move to another city with your kids, to live with your boyfriend.  You were selling your house.  Registering the kids in a new school, in the middle of the school year.  You’d be reducing the father’s time.

d.      You didn’t mention that you were doing all this despite a separation agreement which specifically said you couldn’t do what you were doing.

e.      You certainly didn’t give the father notice of relocation as required by law.

f.      You went ahead with your plan.   It was a “done deal” and the father would just have to live with it.

g.      Except he’s brought a motion – on notice– to stop you.

h.      So now you’re in front of the same judge.  Trying to explain why maybe last timeit was a mistake to trust you.  But this time you should be believed.

That’s a kind of scary even Stephen King wouldn’t mess with.”

          Lang v. Qureshi, 2025 ONSC 585 (CanLII) at 1-2

“During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering.  This behaviour culminated in one of them leaning back in his chair, throwing both hands in the air and laughing in a gleeful moment of triumph during a particularly engaging exchange between opposing counsel and the bench.  Apparently, applicant’s counsel felt that he had scored some major point during my questioning of the respondent’s counsel and wanted to ensure that everyone else was aware of that victory.

I addressed this misconduct at the applicable time during the hearing and, on my insistence, the once-exultant counsel apologized to his colleague.  However, the ignoble display continued – albeit mutedly and intermittently – for the rest of the hearing.

Unfortunately, the behaviour engaged in by applicant’s counsel is neither a new nor a rare phenomenon.  Too often, counsel seem to believe that enthusiastically attempting to disrupt and/or demean opposing counsel during the latter’s oral submissions is one of the hallmarks of an effective advocate.  It is not.  Too often, counsel seem to believe that “rolling eyes, dancing eyebrows and other mannerisms” (See: The Honourable Justice Joseph W. Quinn. (February 12, 2012). A judge’s view: things lawyers do that annoy judges; things they do that impress judges [paper presentation]. 2012 Family Law Institute, Toronto, Ontario, Canada.) whilst opposing counsel is making submissions to the court constitute proper critique or response to those submissions.  They are not.

Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument.  No proper submissions are made by way of emanations from counsel (be they oral, non-verbal, audible or inaudible) when another justice participant is speaking.  Indeed, during a court hearing, there should be nothing from counsel but complete oral and non-verbal silence while someone else “has the floor”.  Anything other than such complete silence is not only distracting to the court, but is also profoundly disruptive, disrespectful and demeaning to everyone in that courtroom.

I fully acknowledge that, in the “heat of battle”, human emotions run high and can sometimes get the better of even the most seasoned advocate.  However, I am unable to countenance any circumstances under which the type of sophomoric behaviour too often demonstrated by counsel could possibly be excusable, let alone acceptable.  It is not only discourteous and disruptive, but is also antithetical to the peaceful and orderly resolution of disputes and undermines procedural and substantive fairness (see: R. v Beals, 2023 ONSC 555, at para. 148).

The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law.  The parties, counsel, other justice participants, the public and the administration of justice deserve far better than what too many counsel seem to have to offer.

Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without in-person human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide.

It has long been a tradition and requirement of etiquette in our courts that counsel refer to their counterpart as their “friend”.  While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility.  All counsel would be well advised to always keep this top of mind, lest the already threadbare state of professionalism and civility between them deteriorate into the irremediable.”

China Yantai Friction Co. Ltd. v Novalex Inc., 2024 ONSC 608 (CanLII) at 20-27

“Under s. 22 of the CLRA, an Ontario court can assume jurisdiction over a mater with respect to a child if the child was habitually resident in Ontario at the commencement of the application for the order, or if all of the conditions under s. 22(1)(b) are met.

22(2) defines “habitual residence” as follows

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. 1. 1. 1. 1.    With both parents.
            2.    If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
            3.    With a person other than a parent on a permanent basis for a significant period of time, whichever last occurrred.
            4.    22(3) provides that the removal of the child from the jurisdiction in which he or she is habitually resident, or withholding return of the child to the jurisdiction without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

In determining the child’s habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis (see: Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII).  Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction (see: Hibbert v. Escano, 2010 ONSC 1445 at para 21).

In Korenic v DePotter, 2022 ONSC 3954, Dubé J. stated at para 22 that s. 22(1)(a) does not require the court to find a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Habitual residency is deemed under paragraph 1 of s. 22(2) when the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.”

            Barakat v. Andraos, 2023 ONSC 582 (CanLII) at 62-66

“The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

a)         to partially indemnify successful litigants;

b)         to encourage settlement;

c)         to discourage and sanction inappropriate behaviour by litigants and;

d)         to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), 2003 S.C.C. 71, paragraph 25.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.”

            McGuire v. Tyrell, 2025 ONCJ 43 (CanLII) at 5-8

“This court has jurisdiction to make therapeutic orders involving children: s. 16(6) DA and A.M. v. C.H., 2019 ONCA 764 at paras 49 to 51. Section 10 of the Health Care Consent Act, which prohibits a health practitioner from administering treatment to a capable person without that person’s consent, does not preclude this Court from ordering an unwilling child from attending therapy if the Court determines it is in the child’s best interests. However, the Court must give greater weight to a child’s wishes as the child matures: A.M. at para 71. In considering whether to make such an order, the Court should assess the child’s maturity.”

            K. v. B., 2025 ONSC 6003 (CanLII) at 26

“In the leading Supreme Court of Canada decisions of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.

In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.

On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.

Moge and Bracklow set out the following examples of compensatory support:

a) A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:

a) A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;

b) A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;

c) A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;

d) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

The Spousal Support Advisory Guidelines (“SSAG”) set out following examples of economic disadvantage:

1. 1. 1. 1. 1. Home with children full-time or part-time;
            2. Secondary earner;
            3. Primary caregiver of the children after separation;
            4. Moving for payor’s career;
            5. Support for payor’s education or training;
            6. Working in family business.

In Bracklow (para 32), the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court also stated that marriage is an “economic partnership” based on mutual support.” The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court”.

Further, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” (see:Bracklow, para 40).

Therefore, all of the statutory objectives must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances.

In Moge (para 870), the court stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.”

            G.E. v. J.E., 2023 ONSC 563 (CanLII) at 105-113

“Cases interpreting s. 56(4) of the FLA confirm that the analysis requires two steps. First, the party seeking to set aside the contract must demonstrate that one or more of the provisions in (a) – (c) has been engaged. If that hurdle is overcome, the court must consider whether it is appropriate to set aside the agreement (LeVan v. LeVan, 2008 ONCA 388 at para. 51; Toscano v. Toscano, 2015 ONSC 487 at para. 43; and Hashemi v. Alanimehr, 2021 ONSC 8569 at para. 14). The burden is on the party seeking to set aside the agreement to bring themselves within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement (Faiello v. Faiello, 2019 ONCA 710, 438 D.L.R. (4^th) 91, at para. 20).

In general, the cases confirm that the court will respect the rights of individuals to enter into separation agreements and the associated expectation that the parties do so in order to achieve certainty and to avoid having their disputes adjudicated before the courts (Goulding v. Keck, 2014 ABCA 138, 572 A.R. 330, at paras. 26-27; Nisbett v. Nisbett, 2010 ONSC 4381, at para. 51; and Carvalho v. Couto, 2023 ONSC 4975 at para. 20).

The latest word on this topic, strongly reinforcing the respect to be given to agreements negotiated between parties, comes from the Supreme Court of Canada’s recent decision in Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4^th) 1.  In that decision, in holding that an agreement resolving property issues which did not satisfy Saskatchewan’s statutory requirements for interspousal contracts was nonetheless enforceable, Karakatsanis J. said at para. 8 that “Given the respect for spousal autonomy reflected in both the legislation and the jurisprudence, unless the court is satisfied that the agreement arose from an unfair bargaining process, an agreement is entitled to serious consideration.”

In considering whether to uphold a domestic agreement or individual terms of such an agreement, it is reasonable for the court to rely on a plain reading of the contract (Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4^th) 418 and Hartstein v. Ricottone, 2016 ONCA 913).”

            Yin v. Feng, 2024 ONSC 455 (CanLII) at 73-76