Author: dawi

“I decline to deal with retroactive spousal and child support. This is a one-hour motion. There are significant issues regarding the delay by Blanca in advancing the spousal and child support claim, and evidence and argument on the relevant factors as set out in D.B.S. v. S.R.G., 2006 SCC 37 will be required.  As well, since Christian has been paying for Blanca’s housing expenses for 6.5 years, he seeks to categorize these expenses as spousal support payments: this will require evidence as well. The income of each of the parties from 2013 to today will need to be proved, including any imputed income claims. All the retroactive issues are complex and must be dealt with at trial. Counsel should have considered the complexity of the issues on the 6.5-year retroactive claim and should not have sought to argue those issues on a one-hour interim motion. It is the responsibility of the party to adequately estimate the time required to argue a motion in accordance with the primary objective of the Family Law Rules, which focuses on reaching a just resolution through fair, efficient and proportionate use of court time and the resources of the parties.”

Montoya v. Arroyo, 2019 ONSC 5335 (CanLII) at 7

“The mother argues that she does not seek a set-off against the amount of spousal support that the trial judge determined is appropriate. Rather, she argues that, in determining both entitlement and what amount of spousal support is appropriate, the trial judge should have considered that she assumed and paid the joint debt that, under the Agreement, the father had agreed to assume. She argues that the trial judge did not have the benefit of Karlovic v. Karlovic, 2018 ONSC 4233, 12 R.F.L. (8^th) 325, which was decided after the trial judge released his decision. The mother says that Karlovic makes clear that the trial judge could, and should, have considered that she had assumed the debt in determining the quantum of support to which the father is entitled.

The parties’ assets and debts can be relevant to determining both the entitlement to, and to a certain extent the quantum of, spousal support. This is because, while the parties’ incomes are the relevant inputs in calculations under the SSAGs, the trial judge retains discretion in determining whether to award support at the low, mid, or high range of amounts suggested by the SSAGs, or in exceptional cases, even to justify departure from the ranges: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 110.”

         Faiello v. Faiello, 2019 ONCA 710 (CanLII0 at 77-78

“The parties share joint custody and share parenting of their only child, Elyse, on a week about schedule.  Elyse is ten years of age.

The parties disagree about whether Elyse should attend school in person or whether she should be schooled online in the fall of 2020.  Father wants her to return to school.  Mother wants her to attend online.

The sole reason for mother’s objection is her fear that Elyse will be exposed to or will contract COVID-19 if she attends in-person schooling.

Elyse is a healthy child with no increased risk due to health conditions or other risk factors.

There is no concern that anyone in Elyse’s family or “bubble” is at increased risk from COVID-19.

Mother agrees Elyse should return to in-person schooling eventually.  Her goal in opposing her return now is to “impose a buffer period so as to allow us to observe and monitor the progression of the pandemic without putting Ellie’s health in jeopardy.”

Mother does not raise any concern about the quality of education the child would receive under the COVID-19 protocols.

The most recent case law in Ontario regarding this issue is Zinati v. Spence, 2020, ONSC 5231.  The relevant factors in these cases are outlined in paragraph 27(c):

When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i.      The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii.     Whether the child or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii.    The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.    Any proposed or planned measures to alleviate any of the risks noted above;

v.     The child’s wishes, if they can be reasonably ascertained; and

vi.     The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

The only relevant factor to consider in this case is (i) above.  I would pose the question slightly differently.  What is Elyse’s risk from being exposed to COVID-19?  The difficulty in finding reliable evidence on this point is well outlined in Zinati.  For children, however, a review of the raw data from the Public Health Ontario website is instructive.

In Ontario, as of September 8, 2020, the total number of children aged 10-19 who have been hospitalized due to COVID-19 is 31.  There are 1,617,937 children in this cohort.  Therefore, the risk of children aged 10-19 of being hospitalized due to COVID-19 is 19 in one million. The total number of deaths in this cohort is nil.

For comparison, in 2019, the incidence of meningitis in the general population of Ontario was 12.8 per one million.  For pertussis, it was 31 per one million.

Any COVID-19 “case” that does not result in hospitalization is not a concern in this analysis since the child would either be asymptomatic or would recover in the same manner that children recover from other minor illnesses.  These “cases” do not represent an increased risk to the child compared to normal risks assumed by children attending school pre-COVID.

Is it in the best interests of a child to be removed from school solely based on a 19 in one million chance of being hospitalized?  No.  As stated in Zinati, it is not realistic to expect or require a guarantee of safety for children in school.  The level of risk to children from COVID-19 is well within the normal parameters of day to day risks associated with living in modern society.”

            Glynn v. Paulmert, 2020 ONSC 5432 (CanLII) at 1-13

“I also find that the Father’s access should be expanded to include regular overnight access. The AFCC-O Parenting Plan Guide (pages 18–19) provides helpful considerations for parents, mediators, lawyers and judges when they are developing parenting time schedules.   

Schedules for pre-schoolers, aged 3 to 5 years: Preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered. Transitional objects, such as a favorite toy, stuffed animal or blanket, moving between the two homes can help a preschooler manage sadness and anxiety.

If one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight. As a child becomes more comfortable moving between the two homes, one or two overnights a week might be added.

In this case the Father is an actively involved parent. Although he attributes blame to the Mother for the absence of regular overnight access to date, the current reality is that the child’s overnight routine is derived solely from her experiences sleeping at the Mother’s home. She needs time to transition to an overnight alternate weekend schedule. Since the three 8-hour blocks per week have proved successful, it is in the child’s best interests to move to overnight access.

In consideration of the animosity between the parties, transitioning to a schedule that provides for pick ups and drop offs at school is one way to protect K.N. from further conflict. The benefits are explained in the AFCC-Ontario Parenting Plan Guide (page 19).

If the parents have difficulty in communicating in person, it may be preferable to have as many exchanges of care as possible done by having one parent drop the child at day care and the other pick up the child at the end of the day. This would require shifting the schedule so that it starts on Monday; apart from holidays, transitions take place through daycare.”

J.N. v. A.S., 2020 ONSC 5292 (CanLII) at 69-71

“The mother and father put considerable emphasis on the Criminal Code. They argue it allows them to use reasonable force as parents to discipline their children.  They defend their behavior, say it is not against the law and reject the Society’s zero tolerance policy for corporal punishment.

In Durham Children’s Aid Society v. J.L.B. (M), 2016 ONSC 6405 at paragraphs 11 and 12, Justice Nicholson reviews the decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76 where the Supreme Court of Canada analyzes the scope of physical discipline that is permissible for children under s. 43 of the Criminal Code before it becomes the crime of assault. From there, he extrapolates six principles applicable to child protection proceedings:

1. 1. 1. 1. Parents or persons who have assumed all the obligations of parents may use corporal punishment;
         2. The punishment must be intended for educative or corrective purposes. In Canadian Foundation for Children, Youth and the Law the court states, “Only sober, reasoned uses of force that address the actual behavior of the child and are designed to restrain, control or express some symbolic disapproval of his or her behavior” are permissible, Supra, see note 6. Here the parents argue that their punishments were intended to be remedial.  I am not persuaded. I find the discipline they imposed on the children was reactive and motivated by anger and frustration when rules and expectations were not met.  Force under those circumstances cannot be seen as reasoned or sober and should not be tolerated;
         3. The child must be capable of benefiting from the correction. This means that the capacity to learn must exist alongside the possibility of successful correction. Here, the parents point to M. and D.’s learning and behavioural issues when explaining their challenges as parents to raise them. Considering the evidence of the boys’ potential mental health diagnoses and the other challenges they face, I find it inconsistent for the parents to expect their sons to have the capacity to make positive and corrective changes from the use of force. M.’s recent evidence indicates that with age, he is better able to control his behavior and follow the rules. He says that he no longer gets hit as muchand it no longer hurts as much [Emphasis added].  For D., the situation is different.  He is younger and still struggles to follow the rules and complete his chores properly. I am confident that the benefit and correction contemplated in the case law does not include fear-based learning motivated by self-protection;
         4. Children under two years of age are not capable of understanding why they have been hit. Therefore, force against children of this age cannot be corrective;
         5. Corporal punishment of teenagers is considered harmful because it can induce aggressive or antisocial behavior. Here, M. is 15 and a teenager. D. is 12 and soon to be a teenager.  Their punishment should not be physical;
         6. Physical punishment must be “reasonable under the circumstances”. To determine reasonableness, the court must look at whether the application of force caused harm or created the prospect of bodily harm. If it did, it was not reasonable. Here, the boys expressed their fear of being hit and harmed by their parents. D. said he believed if hit, he could die. Both boys reported continued pain on at least one occasion: M. in 2014 after receiving the belt; and, D. in 2018 after being hit by his father.  The court must also determine whether objects, such as rulers or belts were used to deliver the punishment. If so, it was not reasonable.  In this case, the parents did not deny their use of the belt in 2014. They have not used it since then but the children report that they continue to be struck with objects such as the toaster oven tray, cereal boxes, slippers and toys.  These factors and others including objective appraisals based on current learning and consensus will assist the caregiver and the court to determine whether the force used is reasonable and reduce the danger of subjective decision-making. Outdated notions of what constitutes reasonable force are not to be given undue authority.”: Ibid, at para. 12.

C.A.S. v. A.W., 2018 ONSC 5262 (CanLII) at 48-50

“The Ontario Court of Appeal set out the test to be met in determining contempt in G.(N.) et al v. Prescott-Russell Services for Children and Adults, 2006 CanLII 21037; 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (C.A.) at paragraph 27:

1. 1. 1. 1.  The order that was breached must state clearly and unequivocally what should and should not be done.

1. 1. 1. 2.  The party who disobeys the order must do so deliberately and wilfully.

1. 1. 1. 3.   The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

In the context of family proceedings, the legal principles applicable have been set out in Janowski v. Zebrowski, 2019 ONSC 4046 to include that the purpose of a contempt order is to force compliance by the defaulting parent, disobedience of court orders must have consequences, civil contempt is a remedy of last resort imposed sparingly and cautiously in family proceedings, the “wilfulness” to disobey must be purposeful and not accidental, the absence of “contumacious intent” for the breach is a mitigating but not exculpatory factor, a parent is not entitled to ignore an order and a parent must take all reasonable steps to ensure compliance with the order: Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24, subparagraphs a, b, d, h, i, j and o. Significantly, at paragraph 24, subparagraph k. of Janowski, Justice Trimble stated:

k. There must be clear and compelling reasons to legally justify violation of an order. In order to this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent [sic] harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence. (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 and 61). (emphasis added)

The Ontario Court of Appeal has additionally recently held in Chong v. Donnelly, 2019 ONCA 799 (CanLII) that even when the three elements as set out in G.(N.), supra are made out, the court should consider whether it should exercise its discretion to decline to make a finding of contempt.”

Halawa v. Brady, 2020 ONSC 5284 (CanLII) at 20-22

“The test for variation of temporary orders was summarized by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, (2012) ONSC 6689:

18  The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 of the Divorce Act sets out a framework for the variation of support and custody orders, however that section only applies to variation of final spousal support orders made pursuant to section 15.2(1) of the Act.

19  Despite the lack of specific provisions in the Divorce Act regarding variation of temporary orders, the court does have the authority to make changes to temporary spousal support orders in response to developments in the parties’ situations and the availability of more fulsome evidence relevant to the spousal support analysis. The power to vary temporary spousal support orders made under the Act derives from the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is critical to ensuring fairness and justice as between the parties, given that temporary orders are often imperfect solutions based on very limited and usually untested information. As Sachs, J. stated in Chaitas v. Christopoulos, temporary corollary relief orders are intended to provide “a reasonably acceptable solution to a difficult problem until trial.”

20  The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.

There is a heavy onus on the party seeking to vary a temporary support order, in that the change of circumstances must be substantial since the previous order was made.  A substantial change must also be material, meaning that “had it existed at the time…would likely have resulted in a different order (see Colivas v. Colivas, 2016 ONSC 715).

“A party cannot rely on his own failure to provide adequate disclosure to argue that the decision based on inadequate disclosure should be given less deference.” (see Colivas v. Colivas, at par. 29).”

            Mancini v. Mancini, 2020 ONSC 5259 (CanLII) at 26-28

“The fair comment defence is admirably summarized in R. Brown, The Law of Defamation in Canada 2d ed. (Toronto:  Thomson Professional Publishing, 1999) at 15.1:

Everyone is entitled to comment fairly on matters of public interest.  Such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest.  A comment is the subjective expression of opinion in the form of deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.  In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts [footnotes omitted].”

            Rogacki v. Belz, 2004 CanLII 21439 (ON CA) at 25

“Counsel for the Applicant took the position that the court does not have jurisdiction to make an order for a Voice of the Child Report unless the parties have consented.

 In Svirsky v. Svirsky 2013 ONSC 5564 (CanLII), I observed in paragraph 21 that there was no statutory authority to appoint a person to prepare a Voice of the Child Report.  In that case, the jurisdiction to do so was not argued because the parties had agreed and the only issue was the selection of the expert.  I am satisfied that there is regulatory authority, namely that rule 20.1(3) gives the court the authority to appoint an expert to inquire into and report on a question of fact relevant to an issue in the case, namely whether either or both children have any views or preferences as to increasing the time that they see their father.”

         Canepa v. Canepa, 2018 ONSC 5154 (CanLII) at 17-18

“If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions as follows:

1)  The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2)  There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3)  The child of sufficient age and maturity objects to being returned (Article 13(2));

4)  The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

5)  The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

Because the arguments in this case touched on the third and fifth exceptions, namely the child’s objections and the “settled in” exception, I will provide further comment on these two exceptions.

(i)         The “Settled In” Exception

First, Article 12 provides the “settled in” exception. As the Supreme Court held in Balev, at para. 66, its function is to provide a “limited exception” to the court’s obligation to return wrongfully removed or retained children to their habitual residences. The court’s discretion to refuse return under the “settled in” exception under Article 12 becomes available if the following two conditions are met:

1) The applicant has commenced return proceedings one year or more following the date of the wrongful removal or retention; and,

2) It is demonstrated that the child is now settled in its new environment.

Under the “settled in” exception, the court must assess the children’s connection to the country they are in at the time of the hearing of the application, not immediately before the date of wrongful removal or retention: Balev, at para. 67. This difference in timing can be significant. The “settled in” exception thus accounts for the possibility that a child will develop closer ties to the jurisdiction in which the child has been wrongfully removed or retained in the period of time that follows the date of the wrongful removal or retention: Balev, at para. 67. As the Supreme Court stated in Balev, at para. 66, “It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling-in indicate that the child should not be uprooted and returned to his or her place of habitual residence.””

         Ludwig v. Ludwig, 2019 ONCA 680 (CanLII) at 34-37