Author: dawi

 “The use of affidavit evidence at trial is increasingly relied upon” as a tool to shorten and bring focus to the trial process, with the intention of minimizing costs of the parties: Rule 23(20.1), Family Law Rules.  It can be quite effective.  It can also prove to be a challenge for counsel accustomed to drafting affidavits for use on interlocutory motions.  Hearsay evidence is permitted in affidavits for procedural matters before the Court; it is not permitted for trials.

I accept the general principle that the rules of evidence must be applied in a relatively flexible fashion when considering the best interests of the children: Power v. Power, 2004 ONCJ 281, at para. 51.  This ensures all relevant information, which may include evidence of character, lifestyle or past conduct, is before the Court when facing the difficult assessment of what parenting plan is in the best interests of the children.  However, the rules of evidence respecting hearsay must not be relaxed at trial simply because a witness provides evidence in chief by way of a sworn affidavit.  This applies in all trials, whether contested or uncontested.”

            A.M. v. D.M., 2023 ONSC 2113 (CanLII) at 1-2

“As set out in Cunningham v. Moran, 2011 ONCA 476, all claims arising from the breakdown of a marriage ought to be heard at one time.”

            Cote v. Cote, 2019 ONSC 2088 (CanLII) at 11

“The mother argues that the motion judge erred in her articulation and application of the test on a motion to change. I agree.

Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Sectio 14(b) of the Federal Child Support Guidelines, SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances.

In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688.

The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:

1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;

2) the change must materially affect the child; and

3) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.”

            Licata v. Shure, 2022 ONCA 270 (CanLII) at 18-21

“A joint family venture is one of the available remedies where there has been a finding of unjust enrichment.  Some courts have held it to be a consideration in the determination of unjust enrichment, but the more accepted approach, based on the framework outlined by the Supreme Court in Kerr, is that it is an available remedy when there has been a finding of unjust enrichment: Kyriacou v. Zikos 2021 ONSC 7589 at para. 122.

Whether here was a joint family venture, is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent, and (d) priority of the family: see Kerr, at para. 89.”

          Westlake v. Ellicock, 2022 ONSC 1980 (CanLII) at 49-50

“In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that a matter should be resolved by summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and apply the law to those facts, and (ii) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak ,at para. 49. The Supreme Court specifically found that summary judgment rules are to be interpreted broadly; the focus must be on providing access to justice in a timely manner: Hryniak at para. 5

The principles laid out in Hryniak apply to summary judgment motions in family law matters; parties must put their best foot forward and the motions judge is entitled to assume that the evidence before the court is the best evidence available: Chao v. Chao, 2017 ONCA 701 at para. 24.

In Solcz v. Solcz, 2012 ONSC 8457, Kraft J. reviewed a number of decisions which have considered the term “no genuine issue for trial.” At para. 76, she summarized the case law as follows:

The term “no genuine issue requiring a trial” set out in r. 16(6) has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following: “no chance of success;” “manifestly devoid of merit”, or “the outcome is a foregone conclusion” or “no realistic possibility of an outcome other than that sought by the applicant.””

          Malaviya v. Dhir, 2023 ONSC 1993 (CanLII) at 18-20

“As observed at para. 62 of Boston, the payee spouse’s need and the payor spouse’s ability to pay are factors which the court considers when determining spousal support, as is the extent, if any, of “double recovery.” Double recovery is defined by the Supreme Court as the “situation where a pension, once equalized as property, is treated as income from which the pension-holding spouse must make spousal support payments”: Boston, at para. 34. At para. 63 Major, J. noted that it is generally unfair to allow the payee spouse to reap the benefit of the pension, both as an asset and then again as a source of income. At para. 64 Major, J. stated that “to avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown.”

In this case, the applicant’s retirement and diminished income potential is a “material change” to warrant a variation order. This is because the current circumstances would permit a double recovery that was not contemplated by Whitten J. in the initial order. I find that had Whitten J. considered the applicant’s current income from his pension would be used in calculating spousal support, the initial order would have changed in its result.”

At para. 65 Major, J. stated that, in certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset in that double recovery may be permitted:

Where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation.

The two circumstances articulated by Major J., in which double recovery may be permitted, is (1) where the payor spouse has the ability to pay, or (2) where the payee has demonstrated a reasonable effort to use the equalized assets in an income-producing way.”

          Lorimer v. Lorimer, 2020 ONSC 1923 (CanLII) at 48-51

“I turn to the admissibility of evidence led on behalf of all of the Respondents in the affidavit sworn February 5, 2021. The Applicant appropriately challenges a significant portion of that evidence.  As the regulated form 14A indicates, the affidavit is to include statements of fact and contains this warning:

If you learned a fact from someone else, you must give that person’s name and state that you believe that fact to be true.

That warning reflects Family Law Rule 14(17) and (18) which provide that evidence on a motion may be given by affidavit and, shall, as much as possible, contain only information within the personal knowledge of the deponent. Pursuant to rule 14(19), the affidavit may contain information that the person learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true.”

          Wu v. Di Iorio, 2021 ONSC 2332 (CanLII) at 39-40

“The father’s unwillingness to administer the child’s medication of his own volition, without consultation with the family physician or discussion with the mother, is of concern. In the case of Janjic v Janjic, 2015 ONSC 2880, the court found the father was in denial about his child’s condition and inconsistent in ensuring his child took the prescribed ADHD medication while in his care. The court found that ADHD was a serious condition and parents who are not willing to take positive, proactive steps to treat that condition when they have resources to do so should not have decision making responsibility: Janjic at para 150.

…

The mother has also demonstrated that, upon consultation with medical professionals, she is able to make medical decisions in the best interests of the child and will adhere to the medical treatment prescribed. The jurisprudence supports that decision-making responsibility be granted to the parent who will not only ensure their child obtains the medical treatment and specialized services they need, but will also ensure prescribed treatments are administered: Janjic at para 150; F.B. v C.H., 2021 ONCJ 275, at para. 51(f); and J.P.K. v S.E., 2017 ONCJ 306, at para. 198(n).”

          Robert v. Louisseize, 2022 ONSC 1756 (CanLII) at 67 & 90

“In Goldman v. Kudelya, 2017 ONCA 300, at para. 41, the Ontario Court of Appeal succinctly said:

A continuation of the conflict does not establish a material change in circumstances.”

P.D. v. D.C., 2021 ONSC 2146 (CanLII) at 22

“In considering whether to order retroactive child support, “unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect.” D.B.S. v. S.R.G  2006 SCC 37 (CanLII), [2006] 2 SCR 231 at para. 5. The court is also to consider the needs and circumstances of the child and the hardship to the payor of a retroactive award. Retroactive child support must not amount to a wealth transfer: Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 69 OR (3d) 577 (CA) at para. 16. Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it. (Michel v. Graydon, para. 41)”

          Amid v. Jones, 2023 ONSC 1855 (CanLII) at 56