Author: dawi

“Since Gordon, courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions: see Prokopchuk v. Borowski, 2010 ONSC 3833, 88 R.F.L. (6^th) 140; Lawless v. Lawless, 2003 ABQB 800, at para. 12 (CanLII); Cameron v. Cameron, 2003 MBQB 149, 41 R.F.L. (5^th) 30; Abbott-Ewen v. Ewen, 2010 ONSC 2121, 86 R.F.L. (6^th) 428; N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8, at paras. 22-23 and 35; E.S.M. v. J.B.B., 2012 NSCA 80, 319 N.S.R. (2d) 232, at paras. 55-57. Courts have been significantly more likely to allow relocation applications where there was a finding of abuse: Department of Justice, A Study of Post-Separation/Divorce Parental Relocation (2014), at ch. 3.3.4.

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.

Domestic violence allegations are notoriously difficult to prove: P. G. Jaffe, C. V. Crooks and N. Bala, “A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes” (2009), 6 J. Child Custody 169, at p. 175; A. M. Bailey, “Prioritizing Child Safety as the Prime Best-Interest Factor” (2013), 47 Fam. L.Q. 35, at pp. 44-45. As the interveners West Coast LEAF Association and Rise Women’s Legal Centre point out, family violence often takes place behind closed doors and may lack corroborating evidence: see S. B. Boyd and R. Lindy, “Violence Against Women and the B.C. Family Law Act: Early Jurisprudence” (2016), 35 C.F.L.Q. 101, at p. 115. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

The prospect that such findings could be unnecessarily relitigated on appeal will only deter abuse survivors from coming forward. And as it stands, the evidence shows that most family violence goes unreported: L. C. Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2nd ed. 2020), 2017 CanLIIDocs 2 (online), at ch. 4.5.2.

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.”

            Barendregt v. Grebliunas, 2022 SCC 22 (CanLII) at 142-147

“The jurisdiction to make a contempt order is found in r. 31 of the Family Law Rules, O. Reg 114/99.

In the recent decision of Moncur v. Plante, 2021 ONCA 462, at para. 10 the Court of Appeal for Ontario summarized the general principles applicable to civil contempt:

1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26..
            2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A. , 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de PreS.-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385Ont. C.A. , 25 R.F.L. (8th) 144, at paras. 18–19.
            3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

I agree with Justice Charney in Perna v. Foss 2015 ONSC 5636, when he stated: “notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.”

Allegations of contempt cannot be “traded.”: see Weber v. Merritt, 2018 ONSC 7590, at paras. 30-39.

Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: see Godard, at para. 28; Bors v. Bors, 2021 ONCA 513.”

            J.I. v. A.A., 2023 ONSC 2942 (CanLII) at 298-302

“Justice Pepall’s decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract: see Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.); Campbell v. Campbell; Hyldtoft v. Hyldtoft (1991), 1991 CanLII 12868 (ON SC), 33 R.F.L. (3d) 99 (Ont. Gen. Div.); Harris v. Harris (1996), 7 O.T.C. 265 (Gen. Div.); Pastoor v. Pastoor (2007), 2007 CanLII 28331 (ON SC), 48 R.F.L. (6th) 94 (Ont. S.C.); Robinson v. Robinson, 2006 BCSC 663; Waters v. Conrod, 2007 BCCA 230; Judson v. Judson (1995), 1995 CanLII 17988 (PE SCTD), 129 Nfld. & P.E.I.R. 302 (S.C.); Ngeruka v. Bruce, 2010 YKSC 51.”

            Gallacher v. Friesen, 2014 ONCA 399 (CanLII) at 27

“The right to bring or respond to a case does not grant either party a license to litigate without regard to the financial and other consequences of litigation.  Particularly in family court, litigants must be mindful that court proceedings are expensive, time-consuming, and stressful not only for parents but also for children and extended family. Sabo v. Sabo, [2013] O.J. No. 4628 (OCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ); Forbes v. Forbes, 2022 ONSC 1787 (SCJ).”

            Churchill v. Elliot and Ward, 2024 ONSC 2757 (CanLII) at 6

“In Dhaliwal v Dhaliwal 2020 ONSC 3971 at paragraph 16, Justice Pazaratz, summarized the applicable legal principles as follows:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil2020 ONSC 1225 (SCJ).

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.  Kaphalakos v. Dayal2016 ONSC 3559 (SCJ); Marchese v. Marchese  2017 ONSC 6815 (SCJ); Jama v. Basdeo 2020 ONSC 2922 (SCJ); Davis v. Davis 1953 CanLII 148 (ON CA); Brienza v. Brienza 2014 ONSC 6942 (SCJ).

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.  Jama v. Basdeo; Steele v Doucett2020 ONSC 3386 (SCJ).

d.   The other joint tenant has a corresponding obligation to permit the sale.  These are fundamental rights flowing from joint tenancy. Steele v Doucett.

e.   The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.  Afolabi v. Fala, 2014 ONSC 1713 (SCJ).

f.   Generally, the party opposing the sale must show malicious, vexatious, or oppressive conduct relating to the partition and sale issuein order to avoid the sale. Silva v. Silva  (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett.

g.   Each case must be considered on its own facts.  The court must consider all relevant factors in exercising its discretion.  Davis v. Davis1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Steele v Doucett.

h.   In family law cases, an order under the Partition Act should generally not be made until any dispute related to the property has first been determined.   Maskewycz v. Maskewycz(1973) 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (ON CA).

i.   The Family Law Actdoes not displace the Partition Act.  But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.  Silva v. Silva;  Parent v. Laroche 2020 ONSC 703 (SCJ); Latcham v. Latcham (2002) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066 (SCJ).

j.   In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole.  Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.  Zargar v Zarrabian2016 ONSC 2900 (SCJ); Giglio v Giglio 2015 ONSC 8039 (SCJ); Keyes v. Keyes 2015 ONSC 1660 (SCJ).

k.   More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.  Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households.   Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.   The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing.  Delongte v. Delongte2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ).  The availability and affordability of alternate housing must be considered.  As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.  Fernandes v Darrigo2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.  Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).

n.   Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage.  The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ).

o.   On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.   The stage of a child’s academic progress might also be relevant.  Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school.  On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.   But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale.  A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient.  The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.   A pending equalization claim may also be relevant.  The court cannot compel one joint tenant to sell to the other.  Martin v. Martin1992 CanLII 7402 (ON CA).  Nor can it give either joint tenant a right of first refusal.   Dibattista v. Menecola 1990 CanLII 6888 (ON CA)..  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home.  If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry 2012 ONSC 2149 (SCJ).

s.   The court must consider and attempt to guard against potential prejudice.  Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

I have considered the above principles in my analysis and am cognizant that courts must examine the individual facts in each case when considering the sale of the matrimonial home. Courts should carefully examine all the circumstances before deciding on the sale of the matrimonial home where there is no final determination, specifically those regarding financial issues and equalization payments.”

            J.T. v. R.F., 2024 ONSC 2745 (CanLII) at 25-26

“The analysis in Miglin was borne out of the spousal support context and the relevant provisions, objectives and structure of the Divorce Act. As our jurisprudence has since recognized, these origins limit the applicability of the Miglin framework in other legislative contexts.

In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, Bastarache J., writing for a majority of the Court, declined to import the Miglin framework to interpret s. 65(1) of the British Columbia Family Relations Act, R.S.B.C. 1996, c. 128, which allowed a court to set aside a presumptively enforceable marriage agreement where division of property would be unfair at the time of distribution (paras. 13 and 42). Bastarache J. held that to adopt “Miglin without qualification would distort the analytical structure” of the B.C. statute (para. 42). In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, in considering four cases about retroactive awards for child support, the Court again did not import a Miglin analysis in assessing whether to vary a prior child support agreement between the parties, noting that two of the appeals fell under the Divorce Act, while the other two fell under Alberta’s provincial regime (paras. 50-53). Rather, the Court had regard to the specific scheme set out in the legislation (see paras. 54 and 75-79). Finally, in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, this Court declined to apply the Miglin framework to interpret s. 17 of the Divorce Act, holding that the different language employed by Parliament in drafting ss. 15(2) and 17 warranted a different approach (paras. 25 and 28).

Adding to comments from this Court, scholars have also questioned the extension of Miglin’s second stage of analysis to the family property division context. Spousal support is primarily a prospective and ongoing obligation that looks to future value, and is in part based on means and need; “[t]he default assumption is that, spousal support is open to modification in response to changing circumstances” (C. Rogerson, “Spousal Support Agreements and the Legacy of Miglin” (2012), 31 C.F.L.Q. 13, at p. 34; see also Miglin, at para. 209, per LeBel J., dissenting, but not on this point; Droit de la famille — 152477, 2015 QCCA 1618, at para. 16 (CanLII); R. Leckey, “A Common Law of the Family? Reflections on Rick v. Brandsema” (2009), 25 Can. J. Fam. L. 257, at p. 280). The division of family property, by contrast, is a chiefly retrospective exercise: it takes stock of property brought into and acquired during the spousal relationship as past contributions giving rise to a property entitlement (Leckey (2009), at p. 280). The relevance of post-execution changes in circumstances is far less obvious to separation agreements dealing with property division, as opposed to spousal support. This subject matter distinction has similarly been recognized by this Court (see Miglin, at para. 76), and partly explains why we have never fully extended the Miglin framework to the division of family property (see Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 39; Hartshorne, at para. 42).

It is clear from this review that the Miglin framework is not a panacea for all domestic contracts. Rather, the analysis to be undertaken in determining whether to give weight to a domestic contract must be determined by reference to the distinctive nature of the underlying statutory scheme. This is especially so given our country’s constitutional makeup: spousal support in the context of a divorce is dealt with under the federal Divorce Act, whereas, family property division, for instance, falls within the province’s jurisdiction over property and civil rights. To automatically import a structured analysis grounded in federal legislation to interpret a discretionary provision in a provincial statute risks undermining the province’s legislative authority (D.B.S., at para. 55; see also M. Bailey, “Limits on Autonomy”, in B. Atkin, ed., The International Survey of Family Law (2010), 95, at p. 97; Leckey (2009), at p. 287).”

            Anderson v. Anderson, 2023 SCC 13 (CanLII) at 28-31

“The Respondent further used the affidavit as an opportunity to criticize the Applicant’s cooking, cleaning and her adequacy as the homemaker and primary caregiver of the children.  He questioned her credibility and mental health because of her delay in reporting the allegations of family violence and by bringing up allegations of her historic childhood trauma.   In my view, the Respondent’s affidavit contained many statements based upon some of the common myths and stereotypes about Applicants who make false claims of family violence to gain an advantage in family court.  The court does not dispute that this has occurred in some cases, however, a delay in reporting and/or the past behaviour of the alleged victim do not definitively prove that the allegations of family violence did not occur.  Not unlike myths and stereotypes in other types of assault cases, there is no one model or rule for how a victim of trauma and/or family violence behaves.  (See summary of myths and stereotypes about victims of trauma and sexual assault in R. v. D.R., 2022 NLCA 2 at 17-33; majority affirmed 2022 SCC 50).

Family violence, power imbalance and control issues are serious and red flags respecting safety that cannot be ignored. Recent changes to the Divorce Act, require courts to consider the impact of family violence.  Family violence is defined in section 2 (1) of the Divorce Act as follows,

“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes

(a)   Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b)   Sexual abuse;

(c)   Threats to kill or cause bodily harm to any person;

(d)   Harassment, including stalking;

(e)   The failure to provide the necessities of life;

(f)   Psychological abuse;

(g)   Financial abuse;

(h)   Threats to kill or harm an animal or damage property; and

(i)     The killing or harming of an animal or the damaging of property.

In situations of coercive controlling family violence, it is actually very common for the victim to delay reporting the allegations, because of the level of coercion and control being exerted upon them when they are in the relationship.  It is also common for their stories to have some degree of inconsistency in the details and timelines because they are recovering from the effects of prolonged stress and trauma.  In the circumstances of this case, it is my view that the delayed and/or non-reporting of the alleged abuses and the lack of sufficient evidence to lay charges, does not mean that the Applicant’s allegations and reports are untrue or that the Applicant lacks credibility.”

            Johnston v. Da Silva, 2023 ONSC 2710 (CanLII) at 12-14

“The CLRA framework specifically defines the circumstances in which one of the parents bears the burden of proof on relocation issues:  s. 39.4 (5), (6), (7), (8). K.L. spends the “vast majority” of time in the care of the respondent such that her father would arguably bear the burden of proof in demonstrating that relocation is not in his daughter’s best interest: 39.4(6). However, the current parenting schedule and residency terms are pursuant to an interim order. The child’s primary residency and the parenting arrangement are a central issue in this matter, for which there is no prior final order. Pursuant to s. 39.4(8), I accordingly find that s. 39.4(6) does not apply to require the applicant to bear the burden of proving that relocation is not in the best interests of his daughter. Pursuant to s. 39.4(7), I find that both parties have the burden of proving whether the relocation is in the best interests of K.L.”

            LaBonte v. Godin, 2023 ONSC 2767 (CanLII) at 48

“As a result, in order to fund any lump sum spousal award in the order of $300,000, the respondent husband would be required to deplete his capital assets.

However, the courts have held that, under the Divorce Act, there is no authority to support the transfer of capital assets in the guise of spousal support: Steinfeld v Koenigsberg, 2019 ONSC 5996 (S.C.J.), at para 179. While the court is entitled to take into consideration the means of the parties, including their capital assets, a party should not be required to pay spousal support out of his savings or to deplete his capital assets for that purpose: Laurain v. Clarke, 2011 ONSC 7195, 16 R.F.L. (7th) 316 (S.C.J.), at 83.”

            Casier v. Casier, 2021 ONSC 3407 (CanLII) at 101-102

“On this motion, the applicant primarily relied on the Automatic Order and on r. 8.0.1 of the Rules. During oral submissions, counsel for the applicant indicated that it would be unprecedented for the court to grant the order sought by the respondent. Both counsel indicated that there were no cases on point. The respondent, in turn, relied primarily on r. 2(2) of the Rules, which sets out the primary objective of the Rules.

In my view, there is ample authority that address situations where a threshold decision ought to be made which is binding on the court. An automatic order is governed by r. 8.0.1 of the Rules and applies to a claim for support under the Divorce Act. The addition of the automatic order to the Rules came into force in December 2021, and not surprisingly, neither party can point to a case on point. As noted by the applicant, the Automatic Order requires the respondent to provide financial disclosure pursuant to r. 13 of the Rules.

When the Application was served, the respondent would have been provided with an Automatic Disclosure order which sets out the financial disclosure required. The Automatic Order codifies the parties’ disclosure obligations at the commencement of the proceedings and applies to the person bringing a claim for the relief set out in r. 8.0.1. Such claims may be included in an issued application, an answer, motion to change a final order, or agreement under r. 15, or delivered as a response to a motion to change that contains a claim. In Manchanda v. Thethi, 2016 ONSC 3776, 131 O.R. (3d) 393, Myers J. provided a detailed and concise history of the rationale for the automatic disclosure order in family law proceedings. He noted, at para. 20:

Without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful. Without enforcement, 17 years into the piece, all of the important words recited above, written by so many experienced family law judges, amount to little more than spilled ink.

Rule 8.0.1 applies to claims made on or after February 1, 2022, respecting:

(a) decision-making responsibility or parenting time;

(b) net family property;

(c) the matrimonial home; or

(d) support.

The applicant’s claim for spousal support is under the Divorce Act, and therefore r. 8.0.1 of the Rules presumptively applies. Form 8.01 mirrors the financial disclosure obligation in r. 13.

In my view, having regard to the objective of the Rules and the nature of the information disclosed, and in the context of pending summary judgment motion to determine the validity and enforceability of the Separation Agreement and release clause, I would not order disclosure in accordance with r. 8.0.1 at this time. Let me explain.”

            Barris v. Barris, 2024 ONSC 2546 (CanLII) at 30-35