Author: dawi

“This is not the first time that a parent who was ordered to pay child support on the basis of imputed income has later sought to vary the order based on line 150 income.  In Trang v. Trang, 2013 ONSC 1980, Justice Pazaratz considered a motion like that of Mr. Dunn. In Trang, as here, the moving party failed to make any financial disclosure prior to the trial that resulted in the order and failed to attend the trial.  Justice Pazaratz’s comments at paras. 51 and 52 about how to approach a motion like this are directly relevant to Mr. Dunn’s motion:

When a court imputes income, that’s a determination of a fact.  It’s not an estimate.  It’s not a guess.  It’s not a provisional order awaiting better disclosure, or further review.   It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for — representations from the payor.

 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income.  They must address why income had to be imputed in the first place.  They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income.  The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

Mr. Dunn has not proven, or even explained, why it is “no longer necessary or appropriate to impute income” to him.  He simply asserts that the court should accept his line 150 income.  I agree with Pazaratz J. that this is not enough:

If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place.  It might even be a disincentive for payors to participate in the initial court process.  They could simply ignore support Applications – as they often do.   They could wait to see if the court imputes income, and how much.  If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. (Trang, para. 53)”

         Lapp v. Dunn, 2020 ONSC 1720 (CanLII) at 12-13

“The effect of Rule 24(10) is that where a court makes no costs ruling or is silent on costs in an earlier preliminary step, it is not open to the motions or trial judge to rule on costs with respect to the earlier preliminary step: Klimowicz v. Moffat-Klimowiz, 2007 CanLII 40866 (Ont. S.C.), at para. 1. This was the status quo in March 2017, when the Order was made. Since then, Rule 24(10) has been modified by Rule 24 (11) as follows:

The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.”

         Zeppieri v. Zeppieri, 2019 ONSC 1870 (CanLII) at 6

“The issue in this appeal is whether the motion judge erred by setting off costs and interest of $331,533.54 owed by the wife to the husband against accumulated spousal support and costs of $479,130.91 owed by the husband to the wife. In the result, the husband owes the wife $147,597.37.

The husband appeals arguing that the motion judge erred by allowing the wife to amend her notice of motion to request the set off, then further erred in granting the set off because set off is not available in law and usurps the jurisdiction of the Family Responsibility Office (“FRO”).

We do not accept these submissions.

The motion judge did not err by allowing the amendment. The Family Law Rules require the court to ensure that cases are dealt with fairly by saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and by giving appropriate resources to the case while taking account of the need to give resources to other cases. The amendment was appropriately allowed.

Nor do we agree that set off was unavailable. The motion judge correctly referred to s. 111 of the Courts of Justice Act. While the Director of the FRO has the duty to enforce support orders, nothing in the Family Responsibility Enforcement Act limits the court’s jurisdiction to order set off. Finally, to allow the husband to pursue a claim against the wife when he is significantly in debt to her would be highly unjust.”

         Berta v. Berta, 2019 ONCA 218 (CanLII) at 2-6

“In her article, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly on page 5, Professor Martha Shaffer writes that, “increasingly, courts have resolved questions about whether to admit surreptitiously obtained evidence in family law cases through the application of their ‘general exclusionary discretion’.”  That discretion enables a judge to exclude otherwise admissible evidence  on the basis that the probative value of the evidence is outweighed by its prejudicial effects.

This type of analysis is also apparent in other family law cases, including Turk v. Turk, 2015 ONSC 216, (transcripts of surreptitiously recorded interactions not admissible on a motion based on  policy reasons strongly discouraging their use  in family law litigation and  finding that the probative value of the evidence was not compelling);  Hameed v. Hameed, 2006 ONCJ 274 (policy considerations were weighed against probative value, compelling reason for admission not shown); Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (probative value outweighed prejudice where  recording said to contain threat by a parent to abduct a child).

Building on  Professor Rollie Thompson’s statement of  three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present  in relation to the admission of surreptitiously obtained evidence in family cases, since its admission  “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.”  In her article, Professor Shaffer elaborates that:

• • • • the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
      • surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
      • admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.

Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:

• • • • large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
      • infliction of emotional trauma to a parent or child; and
      • potential detriment to specific relationships in the family.

Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.

So, for example a series of surreptitious recordings in Nalli v. Nalli 2015 ONSC 3921 were admitted because they showed the father actively encouraging a child to reject and act out against the mother. Recordings in AF v. JW, 2013 ONSC 4272 showed the mother on various occasions engaging in significantly destructive and alienating behaviour, and, her denials to the contrary, that she was contravening a court order by continuing to undermine the relationship between father and children. These recordings demonstrated egregious, even shocking, behaviour on the part of the mother in the presence of the children. The court described what she did as “horrible emotional abuse at hands of mother.”

The father also referred to Reddick v. Reddick [1997] O.J. No. 2497 (Gen. Div.) where the court allowed in four tape-recorded telephone conversations made by the father of the mother speaking to the children. The specific content is not set out in the reported decision, and it appears that it may have been inappropriate or insensitive.   Reddick is one of the earliest reported decisions on the issue. The ruling was based on the best interests of the children which is not in step with the current principled approach of the law of evidence.   The recordings were tendered during the cross examination of the mother at trial.  One concludes from this, although it is not addressed in the ruling, that the intended use was impeachment of the mother’s testimony.   This issue is one for trial that was not before me on this motion.”

         DeGiorgio v. DeGiorgio, 2020 ONSC 1674 (CanLII) at 10-16

“Section 15 of the Family Law Act, supra, provides as follows:

15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residenceor, if there is no place where the spouses had a common habitual residence, by the law of Ontario. (Emphasis added).

The Applicant submits that Ontario is the place where both spouses had their last common habitual residence, and the Respondent contends that the spouses’ last common habitual residence was in Lebanon, where they married and had spent the previous seven months.

In the case of Pershadsingh v. Pershadsingh, 1987 CanLII 4361, this is was squarely dealt with by Walsh J. of the High Court of Justice of Ontario, as it was then known. At page 3, Walsh J. stated:

The key words of s. 15 are “last common habitual residence”. I interpret these words to mean the place where the spouses most recently lived together as a husband and wife and participated together in everyday family life.

Further on the same page, Justice Walsh accepted the description of “habitual residence from Dicey and Morris, The Conflict of Laws, 10^th ed., and he from that treatise as follows:

It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time,” it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.

It has been said that an element of intention to reside is required, though not determinative…The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.”

         Zakhour v. Nayel, 2017 ONSC 1735 (CanLII) at 14-17

“Settlement agreements among parties should be enforced unless the court is satisfied that, in all the circumstances, there is a real risk of clear injustice: L-Jalco Holdings Inc. v. Lawrynowicz & Associates, 2018 ONSC 4002, 294 A.C.W.S. (3d) 274, at para. 34; or there is prejudice, mistake or any other “good reason not to enforce”: Sentry Metrics Inc. v. Erenwein 2013 ONSC 959, [2013] O.J. No. 685, at para. 16.

A judge has discretion to refuse to enforce an agreement where: a) a material fact relevant and significant to the resolution has not been disclosed; and b) the existence of the material fact was or could reasonably have been within the knowledge of the party seeking to rely on the settlement agreement: Saballoy Inc. v. Techno Genia S.A., [1993] A.J. No 276 (Alta QB), at paras. 22-24.

Where parties are engaged in litigation and have properly retained solicitors who enter into settlements on their behalf, these settlements ought to be binding upon the parties and the court should so order: Marcel Equipment Ltd. v. Equipements Benoit D’Armours et Fils Inc., [1995] O.J. No. 673 (Gen. Div.), at para. 78.

The settlement agreement is an enforceable contract and the rules of contractual interpretation apply: L-Jalco Holdings Inc., at para. 34.

…

The authority of a solicitor to enter into settlement discussions and compromise a client’s position is well-settled. In Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.), Evans J.A., writing for the majority, at paras. 10 and 11, stated as follows:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. … A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court.

…

Where a settlement is negotiated between duly appointed counsel with no limitation of authority, the settlement ought to be binding on the parties. I find that the settlement agreement as evidenced in the correspondence between the lawyers for the parties demonstrates a mutual intention to create a legally binding relationship and there was agreement on all essential terms of the settlement.

A failure to enforce settlement agreements duly entered into by lawyers would be contrary to both the court and public policy of encouraging settlement and would result in chaos in the settlement process: Marcel, at paras. 77-78.”

         Gelber v. Gelber, 2020 ONSC 1570 (CanLII) at 19-22, 24, 26-27

“The new approach to fact finding under the Family Law Rules has been to make disclosure a given. Fact-finding is not to be a battleground. There ought to be an orderly, prompt request for disclosure with an organized speedy reply. The process is not to go on forever and the case is to move on because the facts point to a resolution or to the necessity of a trial. Obtaining the factual evidence is no longer a game of hide and seek.

The rules provide a number of tools to create this approach. Rules 19 and 20 set up the process. Sanctions for failure to comply with a disclosure order are found in Rules 1(8), 13(7), 14(23) and 19(10). These sanctions are severe. A litigant may find his or her pleadings struck and the case proceeding without his or her participation. The severity of the sanctions serves to emphasize the importance of disclosing the necessary information in a file quickly.

The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case?  Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness.”

        Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC) at 6-8

“What part do the SSAG play in spousal support variation proceedings?  Initially, when the SSAG were introduced, it was thought that they did not apply to spousal support variation proceedings:  see Fisher v. Fisher, 2008 ONCA 11 at para. 96.  However, since then the SSAG have often been used in determining spousal support in variation proceedings; this was sanctioned by Lauers J.A. in Gray v. Gray, 2014 ONCA 659 where the SSAG were applied on variation proceedings, and Lauers J.A. specifically distinguished Fisher from variation proceedings.  See also Slongo v. Slongo, [2017] O.J. No. 4564 (C.A.) at para. 105, a variation case where Janet Simmons J.A. states that the SSAG, “while not binding, should not be lightly departed from.”

It is doubtful that a change in spousal support alone under the SSAG would be a “change in circumstances” within the meaning of s. 17.   However, Fisher and Slongo both confirm that, where the SSAG are applicable, they are presumptive and the court must explain why it is departing from the SSAG where it determines that it is going to do so.  This is a “guidelines driven” age in the determination of support in family law matters and for good reason; to remove uncertainties from the determination of support gives parties consistency and permits the settlement of support issues without resort to the courts.”

         Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 22-23

“Court orders are not proposals, recommendations or suggestions.  They are commands.  Parties are required to comply with them.  See:  Chapel v. Hillock, 2015 ONSC 4168.  A parent has an obligation to do what is necessary and to actively require the children to comply with the terms of the court order by explanation, exhortation, inducement, entitlement and the threat of discipline.  See:  Purcaru v. Purcaru, 2010 ONSC 4031.  The explanations offered by A.M.T. for her failure to comply, including delay in preparing the children to return, are neither reasonable nor satisfactory.”

         A.C.V.P. v. A.M.T, 2019 ONSC 1559 (CanLII) at 275

“The concept of parallel parenting initially emerged in the social work realm rather than on the legal landscape.  In that context, it was used to describe arrangements where there was either a sole or joint custody order in effect, but the parties were granted the right to make daily decisions and establish their own routines for the children during their residential time (Peter G. Jaffe et. al., “Custody Disputes Involving Allegations of Domestic Violence:  Toward a Differentiated Approach to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500 at 516-17, cited in Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).  On the legal front, the concept of parallel parenting has morphed into a phrase that describes regimes respecting major decision-making.  There are four main types of arrangements that have been described as “parallel parenting” regimes in the case-law, as follows:

1. 1. 1. 1.   First, in some cases, the phrase has been used to describe an order that grants joint custody to the parents in all traditional major areas of decision-making such as medical, educational, religion and extracurricular activities, but which specifically states that each parent has the right to make daily decisions and to establish parenting styles and routines independently of each other.  This arrangement is often referred to as “joint custody in the parallel parenting mode.”  The phrase was used in this fashion in Mol v. Mol, 1997 CarswellOnt 3693 (S.C.J.), L.(A.) v. M. (C.), 2010 CarswellNB 58 (Q.B.)and by the trial judge in Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.).  While the term “parallel parenting” was used in these cases, the type of arrangement under consideration in these decisions was essentially a traditional joint custody arrangement, but which specified that the parties could make day-to-day decisions and establish their own routines during their residential time.   In practice, a traditional joint custody order has been presumed to include these rights to make daily decisions and establish household routines.  The real distinction between a traditional joint custody order and the orders made in this line of decisions is that the orders in these cases also included numerous detailed terms about day-to-day parenting issues to assist the parties in managing areas that have been problematic.  In order to avoid confusion in terminology, it is helpful to refer to this type of order as a “multi-directional joint custody order.”
         2.   A second line of cases has used the phrase “parallel parenting” to describe a regime which divides up the major areas of decision-making between the parties, such that each party has sole, final decision-making authority in specified areas (Moyer v. Douglas, 2006 CarswellOnt (S.C.J.);  Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.);  V.K. v. T.S., 2011 ONSC 4305(S.C.J.);  Suchanek v. Lavoie, 20140 CarswellOnt 1236 (O.C.J.);  Baetans v. Arthurs, 2013 CarswellOnt 5112 (Div. Ct.)).  In the case of V.K., I described this type of arrangement as a “divided parallel parenting regime.”  As in the first line of cases, these types of orders typically also give each parent the right to make general day-to-day decisions and establish daily routines during their residential time, and set out specific and very detailed terms regarding the management of problematic issues.  Some cases have also referred to this type of arrangement as “joint custody in the parallel parenting mode.”  Again, this causes confusion, since this type of order does not require the parties to make major decisions together. The descriptor “divided parallel parenting” is helpful for this type of arrangement, since it reflects that the major areas of decision-making are divided up between the parties.
         3.  A third manner in which the courts have used the phrase “parallel parenting” is to describe an arrangement that essentially grants each parent the right to make major decisions respecting the child in all important areas of parental authority during their residential time, without the consent or involvement of the other parent (see Mol v. Mol, 1997 CarswellOnt 3693 (Gen. Div.); Ursic).  As I indicated in V.K. the phrase “full parallel parenting” is helpful to describe this type of custodial arrangement, since the parents are essentially exercising full decision-making in all areas during their time with the child, but independently of each other.  These types of orders typically require the parties to confer with each other before making a major decision.  In Ursic, the Ontario Court of Appeal upheld such an order on appeal.
         4.   A fourth line of cases that have used the phrases “parallel parenting” or “joint custody in the parallel parenting mode” are those where the parties are granted joint custody, the order sets out specific steps they must take to resolve any differences about major decisions, and the order goes further to state that if they still cannot agree, each party has final say in specified areas of decision-making (see for example  Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.),  aff’d 2007 ONCA 898 (CanLII), 2007 CarswellOnt 8271 (C.A.);  Desjardins v. Desjardins, 2013 CarswellOnt 4496 (S.C.J.);  Plugers v. Krasnay, 2014 ONSC 7078(S.C.J.), aff’d 2016 ONCA 279 (C.A.)).  For the sake of clarity in terminology, I find it useful to refer to this type of arrangement as “joint custody with a divided parallel parenting fallback.”
         5.  Finally, “parallel parenting” has been used to describe hybrid-type custodial arrangements, where the order requires the parties to make some major decisions together, but then divides up other areas of decision-making between the parties (see for example Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.),  reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Grindley v. Grindley, 2012 O.J. No. 3717 (S.C.J), where the court ordered joint custody respecting the children’s activities, but divided parallel parenting in regard to all other areas of decision-making).   In some cases, the orders add an additional layer of complexity by ordering a joint custody with a divided parallel parenting fallback plan in certain areas of decision-making.  Again, in order to avoid confusion respecting terminology, I refer to this type of arrangement as a as a “hybrid” custody regime.”

Jackson v. Jackson, 2017 ONSC 1566 (CanLII) at 68