Category: Uncategorized

“The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 CanLII 20774 (Ont. SCJ pars. 7-13).

Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.”

         Winiarz v. Anderson, 2020 ONCJ 238 (CanLII) at 20-21

“In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate.   A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator.   In addition, co-operative arrangements may lead to opportunities for further family violence.  To help courts assess the impact, severity and risks of family violence, s.16(4) provides a non-exhaustive list of additional criteria.

Subsection 16(4) provides the following in respect of factors relating to family violence.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or

whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family         member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.”

         Bell v. Reinhardt, 2021 ONSC 3352 (CanLII) at 15-16

“This is a classic example of why there are exceptions built into the SSAGs.  Where the SSAG formula generates results that are inconsistent with the objectives of the Divorce Act or the Family Law Act, an appropriate result is achieved by departing from the formula, for example:

a.   For short marriages, that can involve large compensatory claims that are disproportionate to the length of the marriage (SSAGs, c. 12.5); and

b.   Where there is a prior agreement, the SSAGs cannot be used to override an existing agreement (SSAGs, c. 5.2).

In short term marriages, support may be required to alleviate economic loss, such as when one spouse moves across the country (or from another country) to marry and has given up a job or business.  These types of circumstances can also bring the situation under the basic needs/hardship exception of the SSAGs.  Compelling financial circumstances at the interim stage may dictate a higher amount of support for a transitional period:  Divorce Act, s. 15.2(6)(c), and SSAGs, cc. 10.1 and 12.7.

An agreement, such as the Sponsorship Agreement that includes a promise by the Applicant to support the Respondent for three (3) years, is also a relevant factor in deciding spousal support.  The existence of such an agreement can create a reasonable expectation that the wife in this case would receive financial assistance from her husband: M. (O.) v. M. (N.E.), 2003 BCPC 99, 40 R.F.L. (5th) 189, and F.Y. v. F.F.G., 2005 MBQB 36, 16 R.F.L. (6^th) 420, at para. 43.”

         Khan v. Irum, 2021 ONSC 3314 (CanLII) at 19-21

“I agree with the observations of Forgeron J. in MacNeil v. Playford, 2008 NSSC 268 as follows:

[10] Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his/her child.  Domestic violence demonstrates an inability to problem solve in a healthy manner.  Domestic violence shows the absence of respect and dignity for the other parent.  Domestic violence demonstrates a reactive personality with poor impulse control.  Domestic violence is emblematic of poor parenting skills.

[11] Domestic violence will usually impact on the court’s determination as to whom should be assigned primary care of a child.  This is one factor, albeit a significant one, which determines the best interests of the child.  The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined and balanced in determining the best interest of the child.”

         Baran v. Baran, 2019 ONSC 2653 (CanLII) at 53

“The trial judge recognized that Kerr v. Baranow was decided within the context of common-law relationships.  He also knew that, in the present case, the parties had been married. Nonetheless, he understood that this court’s decision in Martin v. Sansome, 2014 ONCA 14 (CanLII), 118 O.R. (3d) 522, mandates that such an approach be followed for married couples, as well as those in common-law relationships. At para. 44 of his reasons, the trial judge states, “the first step must be the determination of whether or not the elements of a joint family venture exist and then determine whether or not there is fair compensation after reviewing the calculations in accordance with the scheme set out in the FLA for equalization of property.”

In my view, the trial judge erred by beginning his analysis with the question of joint family venture. He should simply have had recourse to the FLA. This court’s decision in Martin does not suggest otherwise.

In Martin, the trial judge concluded that the farm business was a joint family venture and awarded the wife a constructive trust interest in it. This court set aside the trial judge’s determination and replaced it with a calculation of the wife’s entitlement under the equalization provisions of the FLA.

At para. 63 of Martin, Hoy A.C.J.O., writing for the court, explains that s. 5(7) of the FLA makes it clear that the express purpose of the FLA equalization provisions is to address the unjust enrichment that would otherwise arise on marriage breakdown.

She then refers to para. 66 of McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, in which this court stated that, “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the [FLA]”.

At para. 66 of Martin, Hoy A.C.J.O. concludes,

if unjust enrichment as the result of a marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party’s entitlement under the equalization provisions of the FLA should first be calculated.

For these reasons, it was an error for the trial judge to begin his analysis by considering the possible existence of a joint family venture. For married couples, application of the FLA equalization provisions is the starting point for addressing inequities arising from marriage breakdown.”

            Halliwell v. Halliwell, 2017 ONCA 349 (CanLII) at 65-71

“In proposing an equal time-sharing parenting schedule, Michael did not focus on the children’s needs or best interests. Rather, he proposed an equal-time sharing schedule on the basis of what he saw as his right to have maximum time with the children. There is no presumption of equal time-sharing of children after a child’s parents separate. Section 24(9) of the Children’s Law Reform Act provides that a child should have as much time as possible with each parent. Section 24(9) does not override the best interests test contained in s.24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. It is noteworthy that Michael addressed his request for equal time with the children on the basis of his perceived right to equal time and not time on facts, which according to him, demonstrated that the children should be in his care 50% of the time.

Michael did not support his request for an equal time-sharing schedule on the basis of evidence, which, according to him had demonstrated that it would be in their best interests to be in each party’s care 50% of the time.  Section 24(9) of the Children’s Law Reform Act requires that the Court determine what “as much time as possible with each parent” means where parents disagree on the amount of time it would be in the children’s best interests to spend in their respective care.”

         Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 62-63

“In Van v. Palombi, 2017 ONSC 2492 (Div. Ct.), the Divisional Court set out the legal principles governing the exercise of judicial discretion to strike a party’s pleadings. The court stated that these “three-pronged principles” are well-established in the case, citing several decisions of our Court of Appeal: at para. 31. The court stated the legal principles as follows:

a.   Is there a triggering event justifying the striking of pleadings?;

b.   Is it appropriate to strike the pleadings in the circumstances of the case?; and

c.   Are there other remedies in lieu of striking pleadings that might suffice?

While striking a party’s pleadings for non-compliance is a remedy available to the court, it is to be reserved for only the most serious and exceptional cases. It is to be used sparingly and with great care and even reluctance.  See: Stulberg v. Batler, [2009] O.J. No. 4780, 78 R.F.L. (6^th) 199 (Ont. C.J.), reversed on other grounds 2010 ONSC 5299, 94 R.F.L. (6th) 375.

The Ontario Court of Appeal noted in Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391, that “the courts must use the utmost caution in resorting to this sanction due to the seriousness of denying a litigant their right to participate in the court process. This is a drastic remedy of last resort which is restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply with or adequately explain non-compliance.”

In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), [2010] O.J. No. 427), the Ontario Court of Appeal emphasizes that special care must be taken in family law cases,

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866 (CanLII), (2009), 60 R.F.L. (6^th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual case”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to any injustice, which will erode confidence in the justice system.”

Sheresht v. Abadi, 2021 ONSC 3161 (CanLII) at 32-35

“In Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 46-48, Abella J., writing for the court, outlined some of the important principles to be considered in reviewing discretionary orders in the family law context:

[C]ontractual autonomy … depends on the integrity of the bargaining process. Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse’s ability to do so[.]

…

[A] duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances….

…

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties…. [Internal citations omitted.]

Rule 13 of the Family Law Rules provides for extensive financial disclosure, and an ongoing duty to correct or update documents. Rule 13(15) provides that “[a]s soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.

…

The motion judge found that Mr. Dowdall knew, at the time he accepted the October 2019 offer, that he would soon earn a much greater salary. This finding is unchallenged and undisturbed on appeal. Given this finding, we agree with the motion judge’s conclusion that Mr. Dowdall did not act in good faith and breached the Family Law Rules, in particular r. 13(15), by failing to disclose the fact that he intended to accept a new job at a significantly higher salary before accepting the October 2019 offer.

…

Finally, we disagree with Mr. Dowdall’s suggestion that setting aside the settlement agreement will “promote litigation and encourage litigants to question, contest, and refuse to be bound by accepted offers without first asking more questions and demanding further disclosure.”

On the contrary, as stated by Abella J. in Rick, disclosure is fundamental to the just resolution of familial disputes. Setting aside a settlement brought about through intentional and material non-disclosure protects confidence in r. 13 disclosure obligations, which in turn encourages settlement. Where both parties have access to the relevant and material information and full disclosure is provided, as required by the Rules, litigation will be minimized. Courts are not inclined to interfere with settlements reached between parties, so long as there has been full and frank disclosure and the opportunity to obtain independent legal advice.”

         Dowdall v. Dowdall, 2021 ONCA 260 (CanLII) at 22-23, 27, 33-34

“Undertakings given at discoveries confer a presumption of relevance and propriety, including proportionality.  In Towne v. Miller, (2001), the court noted that an undertaking is an acknowledgment that a question is proper and that the subject matter of the undertaking is relevant.  Therefore, counsel should not be permitted to renege on a production undertaking where he later comes to believe that the document is not relevant.”

Ahmadi v. Heydari, 2018 ONSC 2682 (CanLII) at 50

“The caselaw is clear that this is a three part test reflected by the following subheadings: see the leading case of Drygala v. Pauli, 2002 CanLII 41868 (ONCA) at paragraph 23.  Good recent summaries of the factors to be considered and the steps in the analysis are set out in Tillmans v. Tillmans, 2014 ONSC 6773, Pey v. Pey, [2016] O.J. No. 1994 (S.C.J.), and Oyewole v. Adepoju, 2019 ONCJ 111.

The first part of the test is establishing whether the spouse is intentionally under-employed or unemployed.  As a general rule, a payor cannot avoid a support obligation by a self-imposed reduction of income (Drygala at paragraph 38).  Choosing to earn less than one is capable of earning is intentional under-employment (Drygala at paragraph 28).

The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63).  Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), 2003 CanLII 3433 (ON CA), 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, at paragraphs 88 to 91).  As noted in Pey, not all career decisions which result in reduced income will be unreasonable.

If there is a finding of intentional under-employment or unemployment, and if applicable, the under-employed or unemployed spouse has the burden of establishing that the decision was required by (1) the needs of any child of the marriage or any child, or by his or her reasonable (2) educational needs or (3) health needs.

If there is unjustified intentional under-employment or unemployment, the last step is to determine what if any income is appropriately imputed in the circumstances.  The onus is on the spouse claiming imputation to establish the evidentiary foundation for the amount sought to be imputed (see Berta above).  There must be a rational basis underlying the selection of an amount (Drygala at paragraph 44).  Drygala sets out considerations at paragraph 45:

45.   When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97 (CanLII), 14 R.F.L. (5^th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

Importantly, as noted in paragraph 46 of that decision as well as in Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (Ont. C.A.) at paragraph 38, the amount of imputed income can also be based on the payor’s previous earning history, applying an appropriate percentage.  There are numerous examples of this in the jurisprudence: see Olah v. Olah (2000), 2000 CanLII 22590 (ON SC), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien (2001), 2001 CanLII 28136 (ON SC); Vitagliano v. Di Stavolo (2001), 2001 CanLII 28202 (ON SC), 17 R.F.L. (5^th) 194 (Ont. S.C.); Zagar v. Zagar, 2006 ONCJ 296 (CanLII); Laing v. Mahmoud, 2011 ONSC 4047 (CanLII); Thompson v. Gilchrist, 2012 ONSC 4137; Stoyko v. Delorome, 2013 ONSC 4232; Walts v. Walts, 2016 ONSC 4777; and Woodenfren v. Woodenfren, 2018 ONSC 4583.”

            McNeil v. Dunne, 2019 ONSC 2528 (CanLII) at 48-53