Author: dawi

“This court has no jurisdiction to hear this appeal. It is an appeal of a final order of a judge of the Family Court made only pursuant to provincial legislation and, as such, must be made to the Divisional Court pursuant to s. 19(1)(a.1) of the Courts of Justice Act.

Where a proceeding is taken before the wrong court, it may be transferred to the proper court: s. 110(1) of the Courts of Justice Act. The decision to transfer is discretionary: Bernard v. Fuhgeh, 2020 ONCA 529, 61 C.P.C. (8th) 231, at para. 15. In deciding whether a transfer is in the interests of justice, the court considers three factors: (1) the merits of the proposed appeal; (2) prejudice that the respondent may suffer as a result of further delay while the appeal is waiting to be heard; and (3) whether the appellant acted promptly after becoming aware that jurisdiction was in dispute.”

Whaling v. Cossarini, 2025 ONCA 173 (CanLII) at 8-9

“Successful self-represented parties are entitled to costs. This preserves courts’ abilities to encourage settlement and discourage inappropriate behaviour. It ensures that the opposing parties do not conduct the litigation from a position of ‘costs immunity.’ In determining costs, the court must continue to consider the objectives in r. 24. But calculating self-represented litigants’ entitlement to costs cannot be approached in the same manner as litigants who retain counsel.  Courts often consider an “applicable hourly rate”, based on the party’s expectations as to the costs they would pay if unsuccessful.  This rate can be informed by the hourly rate of the unsuccessful party’s lawyer, if applicable, and the costs of the successful party would reasonably expect to pay if unsuccessful.  A self-represented litigant’s lost income is another measure that may be considered, though the court must be careful not to equate costs with damages for lost income: see Browne v. Cerasa, 2018 ONSC 2242, at para. 31”.

S.P. v. D.P., 2025 ONCJ 157 (CanLII) at 6

“There is no issue that multiplicity of proceedings should generally be avoided, and all issues should be determined in one trial. However, there are instances where the interests of justice are served by bifurcation of the issues as long as no prejudice is caused to either party.

Section 12(5) of the Family Law Rules provides:

(5) COMBINING AND SPLITTING CASES – if it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly. O.Reg. 114/99, r. 12(5).

Quigley J. in Simioni v. Simioni, 2009 CanLII 934 (ON SC), [2009] O.J. No. 174, 74 R.F.L. (6th) 202, 2000 CarswellOnt 258 at paras. 15-17 (S.C.J.) provides a helpful analysis of the legal principles with respect to bifurcation. This analysis and framework has been followed in many subsequent decisions such as Grossman v. Grossman, 2014 ONSC 2090, Klasios v. Klasios 2015 ONSC 1173, Schulman v Ganz, 2015 ONSC 3254:

(15) First, it should be accepted as non-controversial that both the Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to permit cases such as this to be split: Family Law Act, section 2(10); Rule 12(5).  The jurisprudence confirms that this is an authority and power that ought to be exercised if convenient, and if the exercise of the power would be in the interests of justice.  The interests of justice will be served if there are clear time and expense benefits to be gained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party: Elcano Acceptance Ltd. et al v. Richmond, Richmond, Stambler & Mills, 1986 CanLII 2591 (ON CA), [1986] O.J. No. 578 (O.C.A.); General Refractory Companies of Canada v. Venturedyne Ltd., [2001] O.J. No. 746 (S.C.J.O.); Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Ont. Ct. Jus.(Gen. Div.)).

(16) Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases – in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Courts of Justice Act, section 138; Elcano, above; Carriero (Litigation Guardian of) v. Flynn, [2004] O.J. No. 3117 (S.C.J.O.).  In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balance of probabilities that if granted, severance will result in the “just, expeditious and least expensive determination of the proceeding on its merits”.: Merck & Co. v. Brantford Chemicals Inc., 2004 FC 1400 (CanLII), [2004] F.C.J. No. 1704 (F.C.C.) at para 4.

(17) There are a number of questions the Court should consider in deciding whether the severance of the trial in this instance is just and expeditious. These include whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial are interwoven with those that will arise in the second. They include whether a decision from the first trial will likely put an end to the action, significantly narrow remaining issues, or significantly increase the likelihood of settlement. They include the extent to which resources have already been devoted to all issues, the possibility of delay, the advantages or prejudice the parties are likely to experience and whether the severance is sought on consent or over the objections of one or more parties: see General Refractories Co. of Canada, above at para. 16. However, as Himel J. noted there, emphasizing the observations of Wilkins J. in Royal Bank v. Kilmer, above, the focus of these questions on expediency does not displace fairness and justice as the dominant considerations.”

Baillargeon v. Nesbitt, 2025 ONSC 1394 (CanLII) at 32-34

“There are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Boomhour v. Huskinson, 2008 CanLII 26261 (ON SC), at para. 46; Erb v. Erb, 2003 CanLII 2112 (ON SC), at para. 54; Leonard v. Leonard, 2019 ONSC 4848, at para. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.

Other cases have held that a child may require a “modest transition period” after completion of an educational program to search for employment: S.P. v. R.P., 2011 ONCA 336, at para. 32.

Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be “unable” to withdraw from the parent’s charge. Nor can adult children accumulate multiple gap years to forestall their independence.

A parent paying child support for an adult child enrolled in an educational program “is entitled to receive confirmation from the educational institution attended by each child indicating whether that child is enrolled and is attending and whether he is attending on a part or full-time basis and the hours of attendance”: Lampron v. Lampron, 2006 CanLII 16375 (ON SC), at para. 4; Gill v. Gill, 2020 ONSC 1176, at para. 82; Musgrave, at para. 40. The record before me indicates that, notwithstanding frequent requests by the respondent, this information and documentation was not forthcoming from the applicant until after this motion was brought.

The loss of dependent status is not necessarily permanent. Once lost, dependant status may be regained. In Lawless v. Asaro, 2003 CanLII 2164 (ON SC), at para. 12, Fragomeni J. stated:

An adult child who has ceased to be a child of the marriage may regain that status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.

See also: Bishop v. McKinney, 2015 ONSC 5565, in which the father’s obligation to pay child support was suspended following the daughter’s graduation from high school, but resumed following her enrollment at university a year and a half later.

Where children have taken a gap year to earn money for post-secondary education, these earning may be taken into consideration when determining a parent’s support obligations, and the adult child may be expected to contribute some of their own income made during the gap year to the costs of post-secondary education: Menegaldo, at para. 174, Leonard, at para. 60; Lewi v. Lewi, 2006 CanLII 15446 (ON CA), at paras. 47 and 141.

In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what they want to do. Both children graduated from high school when they were 17 years of age, and turned 18 the following autumn. It is not unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do not necessarily lose their dependant status as soon as they turn 18 years of age.

An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain a dependant, entitled to parental financial support. In the absence of “illness or disability” or some other cause that makes him “unable” to attend school, he no longer qualifies as a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.

While virtual learning may not be ideal, Matthew’s and Aaron’s decision not to enroll in any educational program for the 2020-2021 academic year was their choice. It was a choice that, as adults, they had every right to make, but it is not a choice that the respondent should be required to pay for.”

            Edwards v. Edwards, 2021 ONSC 1550 (CanLII) at 37-46

“In assessing any decision-making order the court must consider whether the terms of a particular order are:

a)   more or less likely to de-escalate or inflame the parents’ conflict;

b)   more or less likely to expose the child to parental conflict; and,

c)   Whether a parent is seeking the order as a mechanism to inappropriately control the other parent.

A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order: Montforts v. Clarke, 2019 ONCA 723.

In V.K. v. T.S. ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a)     The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b)     The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c)     Evidence of alienation by one parent.  If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d)    Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e)    The extent to which each parent is able to place the needs of the child above their own needs and interests.  If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f)     The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

The court has several options: McBennett v. Danis, 2021 ONSC 3610:

1. 1. 1. 1. 1.   It may grant sole decision-making responsibility in all areas to one spouse.
            2.   It may grant joint decision-making responsibility in all areas to both spouses.
            3.   It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
            4.  Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
            5.   Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.

There is also a sixth option of parallel parenting, assigning responsibility for decisions in certain areas to one parent, with the opportunity for input within a certain time frame.”

          Sinclair v. Quade, 2024 ONSC 1098 (CanLII) at 65-69

“In my view, it was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. While s. 15.2(4)(c) of the Divorce Act provides that the court shall consider “any order, agreement or arrangement relating to the support of either spouse”, this does not end the inquiry required. The appellant’s motion would have been an application under s. 17 of the Divorce Act to vary her spousal support. The Supreme Court in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at para. 41, “even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted”.

While the motion judge was entitled to make a factual finding that the evidence regarding the respondent’s income increase did not support a finding that there was a material change in circumstances, her analysis fails to ask whether the appellant faced a material change in circumstances. The court in L.M.P., at para. 29, is clear that the question of a material change applies to both parties:

In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. [Italics in original; underlining added.]

Therefore, despite the existence of an order incorporating an agreement, a judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement.”

          Hendriks v. Hendriks, 2022 ONCA 165 (CanLII) at 50-52

“A resulting trust arises when title to property is in one party’s name, but that party, because they are a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17 at para. 20. The presumption of resulting trust is a rebuttable presumption of law: where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is because equity presumes bargains, not gifts: Pecore, at para. 24.

The purchase money resulting trust is a type of gratuitous transfer resulting trust, where a person advances a contribution to the purchase price of property without taking legal title; gratuitous transfer resulting trusts presumptively arise any time a person voluntarily transfers property to an unrelated person or purchases property in another person’s name: Nishi v. Rascal Trucking, 2013 SCC 33 at para. 21. In the context of a purchase money resulting trust, the presumption is that the person who advanced purchase money intended to assume the beneficial interest in the property in proportion to his or her contribution to the purchase price: Nishi, at para. 29.”

            Falsetto v. Falsetto, 2023 ONSC 1351 (CanLII) at 19-20

“Credibility and reliability are different, but related, concepts. Credibility is the question of whether the witness is being truthful to the best of their ability.

Reliability is the question of whether the witness can accurately observe, recall and recount the events in question: R. v. H.C., 2009 ONCA 56, 244 O.C.A. 288 at para. 41.”

          Belchior v. Belchior, 2024 ONSC 967 (CanLII) at 40

“The Divisional Court in JSR v Children’s Aid Society of Ottawa, 2021 ONSC 630, at para 51, held that if some ongoing contact with a parent would be in the child’s best interests, the CYFSA puts an obligation on the court to make a specific order with respect to that access and not leave it to the discretion of one of the litigants.”

The Children’s Aid Society of Ottawa v. S. B-M. et al, 2025 ONSC 1117 (CanLII) at 31

The relevant sections of the Divorce Act are ss. 8(1)-8(3) and 15.2(4)(a). These sections deal with the concept of living “separate and apart” in the context of a claim for support, and the “length of time the parties cohabited” in the context of spousal support.

The relevant section of the FLA is s. 4(1) which, in the context of family property, defines “valuation date” as the earliest of five possible dates. In this case, subsection 1 of 4(1) applies, referring to the date the spouses separated and there was no reasonable prospect that they would resume cohabitation.

As stated by the court in Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 26, ascertaining when parties begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits, practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.

In Al-Sajee, the court set out various factors to consider. They are summarized as follows:

1. 1. 1. 1. 1.    To be living separate and apart requires: i) the parties live apart from each other, and ii) there must be an intention on the part of one or both of them to live separate and apart from the other.
            2.    To live “apart” requires a physical separation of the parties. However, they can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors listed.
            3.    Two residences and significant periods apart in the two residences is not determinative. Parties in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship.
            4.    Whether there is a withdrawal by one or both parties from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship.
            5.    A meeting of the minds is not required. A physical separation, coupled with the intention of one party to live separate and apart, is sufficient.
            6.    A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant.
            7.    In assessing “intention”, the court must strive to determine the parties’ true intent and not simply their stated intent at the time of hearing.
            8.    A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal.
            9.    The degree to which the parties have been intimate with each other.
            10. Whether the parties have been involved romantically with other people.
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues.
            12. Whether there have been any changes in expectations regarding their accountability to each other for daily activities.
            13. The extent and nature of the parties’ contact with each other, including whether they have continued to participate in joint social activities. In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility”.
            14. Whether the parties have attended with their children for family events.
            15. Whether the parties have continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores.
            16. Whether the parties have celebrated special occasions together and/or vacationed together.
            17. Whether the parties have purchased gifts or exchanged other tokens of affection with each other.
            18. Whether the parties have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues.
            19. How the parties have referred to each other to third parties.
            20. Documentary evidence respecting their relationship status is also relevant (i.e. Income Tax Returns) as is the receipt of any benefits claimed that are conditional on their relationship status.
            21. Whether the parties have retained or consulted a counsellor or mediator.
            22. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings.
            23. Whether the parties have continued to share the use of assets.
            24. The parties’ behaviour towards each other in the presence of third parties.
            25. Whether the parties have taken steps to legally terminate their relationship and resolve issues relating to their separation.”

Kim v. Lee, 2025 ONSC 1101 (CanLII) at 5-8