Month: March 2026

“I start my analysis by observing that subsection 2(1)(b) of the Divorce Act states that a “child of the marriage” means a child of two spouses or former spouses who, at the material time,

is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In Licata v. Shure, 2022 ONCA 270 at para. 33 the Court of Appeal stated:

When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted]

In Licata, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden, 1993 CanLII 2570 (BCSC), 1993 CarswellBC 619,  at para. 15.

The Farden factors are:

(1)               whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2)               whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3)               the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)               the ability of the child to contribute to his own support through part-time employment;

(5)               the age of the child;

(6)               the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)               what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)               at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

For the reasons that follow, based on the Farden factors and related jurisprudence, I find that Natalie continued to be a child of the marriage past April 1, 2022 and until she completes the second year of her M.Ed. degree in August 2023.

In Makdissi v. Masson, 2017 ONSC 6498, at para. 25, the court stated:

The operative words here are “under their charge” and “unable by reason of … other cause to withdraw from their charge”. In short the parent seeking child support must be supporting the child and it must be reasonable for him or her to do so because the child is not able to support him or herself. It is well established that attendance at post-secondary education will satisfy this test but it is rare for the court to find that the obligation to pay support continues once the child has earned two post-secondary degrees. The question however is not whether there is a magical bright line cut-off after one or two university degrees. There is not. The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances. The key consideration is dependency. [Footnotes omitted.]”

            Fielding v. Fielding, 2023 ONSC 1819 (CanLII) at 55-60

“It has long been the law in Ontario that a person in the shoes of the Applicant has an onus to demonstrate that she is likely to receive an equalization payment that has some relation to the value of the assets that are the subject of the preservation order being sought. Lasch v. Lasch, 1988 CanLII 4581 (ON SC), [1988] O.J. No. 488 (Ont. H.C.J.).”

Al-Fatal v. Al-Fatal, 2023 ONSC 2047 (CanLII) at 4

“An application judge’s discretion with respect to the granting or refusing of an adjournment is broad, and appellate courts should be reluctant to intervene: Graham v. Vandersloot, 2012 ONCA 60, 180 O.R. (3d) 641, at para. 5. In declining to grant an adjournment, a judge may rely on a range of factors, including a lack of compliance with prior court orders, previous adjournments that have been granted, previous peremptory hearing dates, the desirability of having the matter decided and a finding that an applicant is seeking to manipulate the system by “orchestrating delay”: see The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 37. In Igbinosun, Weiler J.A. added an important caveat, that denying an adjournment solely because a hearing has been designated peremptory may not be appropriate; at para. 43. See also Conway (Re), 2016 ONCA 918, at para. 24.”

            Ross v. Luypaert, 2025 ONCA 236 (CanLII) at 22

“In Caldwell v. Caldwell, 2023 ONSC 7715, the court reviewed the law regarding costs thrown away when a trial is adjourned, at paragraphs 8 and 11 to 13 as follows:

8            The phrase “costs thrown away” refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial: Pittiglio v. Pittiglio, 2015 ONSC 3603 (CanLII) (Ont. S.C.J.) at para. 7; Middleton v. Jaggee Transport Ltd., 2014 ONSC 3041 (CanLII) (Ont. S.C.J.), at para. 5.

11           Costs thrown away are generally payable on a full recovery basis: Pittiglio, at para. 5; Milone v. Delorme, 2010 ONSC 4162 (CanLII), 2010 CarswellOnt 5535 (Ont. S.C.J.), at para. 12; Straume v. Battarbee Estate, 2001 CarswellOnt 6225 (Ont. S.C.J.), at paras. 2-3; Middleton, at para. 5. This is because the purpose of such an award of costs is to “indemnify a party for the wasted time for trial preparation arising from the adjournment”: Pittiglio, at para. 6; Legacy Leather International Inc. v. Ward [2007 CarswellOnt 527 (Ont. S.C.J. [Commercial List])], 2007 CanLII 2357, at para. 9. Such an award is not to punish the party seeking the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment: Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance Co. [1989 CarswellAlta 405 (Alta. Q.B.)], 1989 CanLII 3385, at para. 12; Pittiglio, at para. 6, citing Kalkanis v. Kalkanis, 2014 ONSC 205 (CanLII) (Ont. S.C.J.), at para. 3.

12          The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much: Straume, at para. 4. It has been described as an “intuitive”, rather than a scientific, process: Pittiglio, at para. 17.

13           An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded: Straume, at para. 37; Middleton, at para. 23; Laudon v. Roberts & Sullivan, 2007 CanLII 10906 (ON SC), at para. 20.

In Pryce v. Pryce, 2019 ONSC 3441, in a highly contested parenting case involving a request to adjourn a six- day trial scheduled to start that day, the court observed that while “much of the preparation will need to be redone in advance of the trial…” there were “tasks that will not be completely wasted, such as preparation of the opening statement, questions for witnesses and draft order.” The costs claimed were reduced from $7,585.71 to $6,102, both amounts inclusive of disbursements and HST.

The above cases relate to costs thrown away arising from the adjournment of contested trials. The principles in these cases should also apply, with any necessary modifications, to costs thrown away when a party prepares for an uncontested trial that does not proceed at the request of the other party.

In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.”

Magalhães de Araújo v. Torres, 2025 ONCJ 164 (CanLII) at 24-27

The principles in the legislation and the jurisprudence make it clear that parenting time shall be determined based upon what is in the best interests of the children.   Following Lang v. Qureshi, 2025 ONSC 585:

a)      Best interests of a child is determined by focusing on the child, not the parent.  The analysis should be centered on the rights of the child, from a child-centred perspective.  See para. 26(c).

b)      Primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being.  See para. 27.

c)      A proper consideration is the willingness of each spouse to support the development and maintenance of the child’s relationship with the other spouse.  See para. 29.

d)      An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and ability of each parent to meet those needs.  Each child deserves to have a meaningful and consistent relationship with both parents. See para. 30.

e)      The allocation of parenting time must adhere to the principle that “a child should have as much time with each spouse as is consistent with the best interests of the child”.  See para. 33.

f)      A child focused approach is required, with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child’s best interests.  It may end up being equal time.  It may end up being some other division of time.  See para. 33(c).

g)      Frequent and meaningful parenting time is necessary for the formation and continued development of healthy attachments between young children and their parents.  See para. 33(f).

h)      A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them.  See para. 33(g).

i)      The allocation of time must address both quantitative and qualitative considerations.  Parenting time entails more than simply one-on-one parent and child interaction.  It includes parental responsibility and involvement with respect to all aspects of the child’s life – throughout the child’s schedule – including school-related matters, extracurricular activities, and other events.  See para. 33(h).”

Wojick v. Wojick, 2025 ONSC 1888 (CanLII) at 12

“D.B.S. said the following in relation to the start date for support:

a.   Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments.  This date represents a fair balance between certainty and flexibility.

b.   An earlier date may be appropriate if there is blameworthy conduct by the payor.

c.   But generally a retroactive award should not commence earlier than three years before formal notice was given.

d.   Effective notice is defined as any indication by the recipient parent that child support should be paid, or that a current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair.

e.   But the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct.

In Michel the Supreme Court suggested that rather than ordering retroactive support back to the date of effective notice, it may now be time to simply start ordering payors to pay what they should have paid, as a matter of course.

a.   Payors have an absolute – not a contingent– obligation to support their children in the amount set out in Child Support Guidelines, pursuant to a now long-standing, well-publicized family law regime.

b.   By now, every parent should understand that the amount of child support you pay is based on the amount of income you earn.   It’s a simple, logical concept.

c.   If the obligation by the payor and the entitlement by the child are both absolute and unconditional, it makes little sense to invite more complication – and litigation – by adding a condition that “mandatory payments” are only “payable” if the recipient does certain specific things to ask.”

            Abumatar v. Hamda, 2021 ONSC 2165 (CanLII) at 59-60

“Section 94(11) of the CYFSA directs that at the interim stage of a case, the Court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.  Section 74(3)(a) also places the child’s views and wishes front and center, in the best interests’ analysis.   Moreover, the first sentence in the preamble to the CYFSA acknowledges that children “are individuals with rights to be respected and voices to be heard”.

However, the right to respect and to be heard is not tantamount to the right to decide.  And despite their additional importance within the statutory scheme, a child’s views and wishes are to be “given due weight in accordance with the child’s age and maturity”.”

Durham Children’s Aid Society v. R.S and S.S, 2023 ONSC 1919 (CanLII) at 151-152

“Three elements must be satisfied in order for an inter vivos gift to be valid: a specific intention to make a gift by the donor, delivery of the gift, and acceptance by the donee:  McNamee v. McNamee, 2011 ONCA 533, at para. 43.

The recipient of the gift bears the onus of establishing all three elements of an inter vivos gift:  Carvalho v. Verma, 2024 ONSC 1183, at para. 50.

The Court must engage in a contextual analysis, weighing all the available evidence in order to ascertain, on a balance of probabilities, the donor’s actual intention with respect to making a gift:  Pecore v. Pecore, 2007 SCC 17, at para. 44.

In determining intent, the Court must examine the balance of the evidence to determine what the intention was with respect to the gift. It is specifically the intention of the transferor that is relevant: MacIntyre v. Winter, 2021 ONCA 516, at para. 24.  This requires clear, convincing and cogent evidence that there was an intention to make a gift:  Walker v. Faarsijani, 2021 ONSC 5571, at para. 19.

It is the transferor’s actual intention at the time of transfer that is the critical consideration: Rascal Trucking Ltd. v. Nishi, 2013 SCC 33, at para. 41.”

Hugginson v. Hugginson, 2025 ONSC 1797 (CanLII) at 19-23

“On July 23, 2024, the provincial government enacted Ontario Regulation 300/24 which added Rule 4.05.3 to the Rules of Civil Procedure.  The Family Law Rules incorporate certain aspects of the Rules of Civil Procedure by reference, confirming at Rule 1(7) that reference is to be had to the Rules of Civil Procedure if a matter is not covered under the Family Law Rules.  The portions of Rule 4.03.5 applicable to today’s situation are as follows:

4.05.3 (1) In this rule,

“CaseLines” means the software authorized by the Ministry of the Attorney General for the purposes of this rule and that is available on the internet under the name “CaseLines”.

(2) This rule applies to all or part of any hearing, pre-trial conference or case conference under these rules, except in a proceeding in the Court of Appeal.

(3) A party shall provide the following documents to the court by submitting them to CaseLines in accordance with this rule, if the court requires the party to do so:

1. 1. 1. 1. 1. 1. Every document the party files or has filed with the court in respect of the hearing or conference.
               2. Subject to subrule (5), any other document in the court file that the party intends to rely on at the hearing or conference and that has not already been submitted to CaseLines by another party.
               3. A compendium containing the excerpted portions of the cases and of the evidence to which the party intends to refer during the hearing or conference.

(4) Subject to subrule (5), the documents listed in subrule (3) must be submitted to CaseLines by the following deadline:

1. 1. 1. 1. 1. 1. In the case of the hearing of a motion or application where the party is required to give the registrar a confirmation of motion (Form 37B) or confirmation of application (Form 38B), the deadline is 2 p.m. three days before the hearing date, unless the court orders otherwise.
               2. In any other case, the deadline is five days before the date of the hearing or conference, unless the court orders otherwise.

…

(8) The party shall ensure that every document that the party submits to CaseLines is identical to that document as contained in the court file, subject to any modifications required by this rule or the court.

…

(11) For greater certainty, submitting documents to CaseLines does not amount to the filing or service of those documents under these rules.

Here, again maintaining the exception for costs-related materials, I note that Father uploaded a Financial Statement and an updated Form 35.1 Affidavit to Case Center yesterday.

Case Center has been in use for almost three years.  At no time were parties permitted to upload materials without ensuring their proper service and filing.  As Justice Piccoli wrote in the unreported case of Dragomir v. Lucuta, Court File No. FC-10-FS-44165-003, heard at Kitchener on November 11, 2024.:

We have long been taking a lenient approach to issues with materials out of compassion for litigants and counsel and in an attempt to ensure access to justice.  However, as former Senior Family Judge Czutrin famously reminded us, “what we permit, we promote.”

In that case, Her Honour struck the motion from the list, requiring all materials to be properly filed and uploaded to Case Center before a fresh hearing date could be arranged.

It is not the Court’s responsibility either to pursue counsel to ensure that they have properly filed materials referenced in their Confirmations or to act in a secretarial capacity on the hearing date and correct administrative errors.  The only reasonable exception is for materials related to the issue of costs, which would normally be reviewed only at the conclusion of the motion hearing.

Therefore, these motions proceed with argument only on the above-listed documents which have actually been served and filed.”

Demetriou v. Jamali, 2025 ONSC 1683 (CanLII) at 6-11

“Parties are entitled to enter into contracts to arrange their affairs as they see fit. Courts are to respect the abilities of parties to make their own decisions and organize their own affairs: Hartshorne, at para. 36. Domestic contracts should generally be encouraged by the courts: Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4^th) 1, at para. 33. There are, of course, circumstances in which a court will not enforce a contract. Courts must be alive to the particular vulnerabilities that that can undermine the fairness of a domestic contract negotiated during a separation: Anderson, at paras. 3, 34.

The concept of unconscionability in family law is broader than in the commercial context. The question is whether there are any circumstances of oppression, pressure, or vulnerabilities being exploited during the negotiation process that resulted in an agreement that deviates substantially from legislation: Rick v. Brandzema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 44. The courts have used the language of taking advantage of or preying on a weaker party’s vulnerability when assessing unconscionability in a family law context: Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 18 O.R. (3d) 641 (C.A.), at p. 645; Toscano, at paras. 63-68.”

          Albaum v. Albaum, 2024 ONSC 1595 (CanLII) at 83-84