Category: Uncategorized

“I turn to the nature of an RESP, which is dealt with both in the Income Tax Act, as well as in certain case law. 

Firstly, an RESP is not a section 7 expense.  Parents cannot be compelled by Court Order to contribute into one, absent an agreement.  See Popovski v. Pirkova, 2017 ONSC 2363 at 49; see also Smith v. Smith, 2011 NSSC 269 at 80. Despite that, in this case, the parents initially agreed to contribute into RESPs in a certain way and to allocate that money in a certain way.  And they subsequent altered that agreement.

Nevertheless, the RESPs are still assets that are owned by one or the other.  Although neither parent tendered her and his RESP plan documents setting out the terms of the plans, the statements do indicate that the mother is the owner of the plan for H.S., and the father is the owner of the plan for I.S. that he subsequently set up.

At paragraphs 34-38 of Vetrici v. Vetrici, 2015 BCCA 146, the British Columbia Court of Appeal wrote the following about the nature of RESPs:

[34]   The RESP is a type of investment registered pursuant to s. 146.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).  A RESP is a savings / investment vehicle for anticipated post-secondary education costs that provides two benefits: (a) income tax deferral on investment income (s. 146.1(6)); and (b) matching grants from the federal and some provincial governments.  Practically speaking, a RESP is an agreement between a “subscriber” (typically, a parent or grandparent) and the “promoter” (i.e., provider) of an investment product (often a chartered bank) to invest the subscriber’s contributions consistent with s. 146.1.  However, unlike contributions to a Registered Retirement Savings Plan (“RRSP”), the contributions to a RESP are made from tax-paid funds.

[35]   When a RESP is opened, the subscriber names a beneficiary (typically, a child or grandchild) (s. 146.1(1)).  If in the future the beneficiary enrolls in an eligible post-secondary institution, then the subscriber can request the promoter to make educational assistance payments to the beneficiary or to the subscriber for the beneficiary’s use (s. 146.1(2)(g.1)).  The educational assistance payments are comprised of the investment income earned on the contributions and any grants (s. 146.1(1)).  The subscriber also can request that the promoter pay out contributions to the beneficiary.  The beneficiary claims as his or her income funds attributable to the grants and investment income, which were subject to the tax deferral, but not the proportion drawn from the contributions (s. 146.1(7)).

[36]   As described by Mr. Justice Hall in Luedke v. Luedke, 2004 BCCA 327 (CanLII) at para. 25, 44 B.C.L.R. (4th) 35, a RESP is a way of “making provisions for an anticipated expense in the future”.  However, contributions to a RESP and any accumulated investment income remain the property of the subscriber until the subscriber directs payment to the beneficiary.  If for some reason the beneficiary does not attend an eligible post-secondary institution, the Income Tax Act provides several mechanisms to address the funds held in the RESP.  In some circumstances, the funds may be transferred to the subscriber’s RRSP, less any grants, or the beneficiary’s Registered Disability Savings Plan, if he or she is eligible for one (ss. 146.1(1.1) and (1.2)).  If one of those options is not available, then grant funds are returned to the government and the remaining funds are returned to the subscriber.  That portion of the remaining funds attributable to investment income is taxable in the hands of the subscriber (s. 146.1(7.1)).

[37]   Of particular note is that the subscriber may, at any time, withdraw from a RESP monies for which the subscriber is entitled to a refund of payments, i.e., monies that are not attributable to grants (s. 146.1(1)).  When this is done, the subscriber must pay tax on any monies attributable to investment income (ss. 146.1(1), (7.1), and (7.2)).  Where, on the breakdown of a marriage or common-law partnership, spouses divide a RESP by court order or agreement, the amount transferred is excluded from the recipient spouse’s income (ss. 146.1(7.1) and (7.2)).

[38]    Also of note is that because a RESP belongs to a subscriber, it forms part of a deceased subscriber’s estate and, accordingly, should be taken in account for estate planning purposes:  see Valorie Pawson, “Beneficiary Designations 101” (Materials prepared for the Continuing Legal Education Society of British Columbia’s Wills and Estate Planning Basics, May 2012) at 9.1.8-9.1.10.

Similarly, as Mesbur J. said in Popovski v. Pirkova at paragraph 49:

RESPs are savings vehicles, earmarked for post-secondary education of a child, but not necessarily required to be used for that purpose.  I have no evidence that Mr. Popovski is prohibited from withdrawing from the RESP he has established.  Importantly, I have no evidence A will necessarily attend a post-secondary institution.  If and when that occurs, the funds in the RESP, if any can be taken into account in apportioning the parent’s obligations to contribute to the cost of post-secondary education.

See also M. (C.S.) v. L. (W.S.), 2015 BCPC 252 at paras. 26-28 for other case law commentary about the nature of an RESP.”

            C.S. v. D.A.S., 2020 ONCJ 16 (CanLII) at 143-147

“In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:

Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.”

         A.P. v. L.K., 2021 ONSC 150 (CanLII) at 211

“What remains is Cindy’s claim of intentional infliction of mental distress. In Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), the Court of Appeal for Ontario confirmed the existence of the tort of the intentional infliction of mental suffering, and summarized its elements as follows, at para. 48: “(1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness” (emphasis added).

Cindy testified that Carlo subjected her to verbal abuse throughout their relationship and that it only seemed to worsen in later years. She testified that he called her derogatory names and that he “cut her up,” especially in front of other people. Although Carlo testified that the couple had arguments, he denied verbally abusing Cindy during their marriage.

Cindy testified that, because of the abuse she endured during the marriage, in combination with an incident in August 2015 involving Carlo and her best friend’s niece, she suffers from depression and post-traumatic stress disorder. She testified that she had undergone counselling since separation and produced invoices to prove this and demonstrate its cost. During submissions, Cindy abandoned her claim for $100,000 in damages. Instead, she now only seeks a monetary award to cover her costs for counselling.

Cindy’s evidence that she suffered from depression and post-traumatic stress disorder appears based on what at least one of her therapists told her. None of her therapists testified at trial, nor was there any evidence regarding their qualifications. During cross-examination, Cindy acknowledged that no medical doctor had diagnosed her with either depression or post-traumatic stress disorder or prescribed medication for the treatment of these conditions.

The absence of medical expert evidence is not necessarily fatal to a claim of intentional infliction of mental suffering: Prinzo, at para. 46. Nevertheless, to succeed, Cindy must establish that she suffered more than the type of mental distress that many spouses experience at the breakdown of their marriage; she must establish a visible and provable illness: Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 60. In my view, on this record, she has failed to prove this on a balance of probabilities.”

         Cordi v. Cordi, 2021 ONSC 128 (CanLII) at 91-95

“Ms. Perez’s request pursuant to section 37(2.1) of the Family Law Act, for an order for child support adjustments based on Mr. Chiris’ actual income for the years 2011 through 2017 places her squarely into a D.B.S. S.R.G, 2006 SCC 37 (S.C.C.) (hereinafter referred to as D.B.S.) analysis.

In D.B.S., the Supreme Court of Canada identified that the making of a retroactive support order is discretionary and there are a number of factors that a court should consider before making one. They are:

•             Reasonable excuse as to why support was not sought earlier;
•             Conduct of the payor parent;
•             Circumstances of the child; and,
•             Hardship occasioned by a retroactive award.

The Supreme Court of Canada revisited these factors in the recently released decision in the case of Michel v. Graydon, 2020 SCC 24. With respect to the issue of delay in making an application, the court stated in paragraph 111 that “the focus should be on whether the reason provided is understandable” rather than whether the support recipient had a “reasonable excuse” for the delay. Further, at paragraph 113, the court held: “Rather, a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made (D.B.S., at para. 101).”

In this case, Ms. Perez’s reason for delay is that she did not understand that she had to request annual financial disclosure from Mr. Chiris in writing and apply for a change in order to receive it. This is not an unreasonable understanding on her part. That she was not proficient in English at the time of the signing of the agreement, that her OW worker was assisting the parties with the agreement, that she obtained no legal advice and that she felt intimidated by Mr. Chiris’ last communication with her, only support the reasonableness of her understanding. A generous appreciation of the social context leads me to the conclusion that Ms. Perez’ delay in seeking to increase the support payable for Samuel is understandable.

With respect to the conduct of the payor parent, the court stated at paragraph 115 of Michel: “D.B.S. purposively provided an expansive definition of blameworthy conduct, being “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support (para.106)”.

At paragraph 116, the court states:

[116] …The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often the root cause of a delayed application. Indeed, in D.B.S., the Court recognized at para. 124 that “[n]ot disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct.” It further commented that “a payor parent cannot use [their] informational advantage to justify [their] deficient child support payments” and at para. 106 that “a[a] payor parent cannot hide [their] income increases from the recipient parent in the hopes of avoiding larger child support payments”.”

Perez v. Chiris, 2021 ONSC 101 (CanLII) at 22-27

“Clearly the FLR contemplate that dealing with family law cases justly is not a passive affair where the court simply reacts to motions brought by the parties. From the beginning of a case until its conclusion, the court must play a dynamic and independent role in managing cases to resolution. It must do so in order to ensure that it does justice to the parties and their children. One key venue in which the court does so is in conferences.

The court is required to assume this active case management role for a variety of reasons. It attempts to protect the parties from the costs and ravages of unnecessary and disproportionate litigation. It endeavors to protect the parties’ children, as much as possible, from the effects of their parents’ conflict. Further the court must protect its own precious resources from being wasted on bootless litigation. As the Ontario Court of Appeal recently stated in Beaver v. Hill, 2018 ONCA 840 (O.C.A.), in the context of a family law case, proportionality is a core principle that governs the conduct of proceedings generally.”

Chateauvert v. Chateauvert, 2019 ONSC 81 (CanLII) at 34-35

“In Rogers v. Rogers 2013 ONSC 1997, Justice Pazaratz found that the payor could not rely on material change of circumstances that he created himself as he was temporarily unemployed due to his own reckless conduct in committing crimes including driving while under suspension, The Court found that this was a “self-created situation” (para. 38).  He cannot avoid child support obligation by a self-induced reduction of his income.

In Costello v. Costello 2012 ONCJ 399, Justice Zisman refused to vary the father’s child support obligations as a result of his losing his job due to his criminal behavior. He lost his job as a young offender probation officer after pleading guilty to 2 drinking and driving charges. She refers to Mayatt v. Mayatt 1993 CanLII 1144 (BC SC), 1993 Carswell BC 595, that found that a police officer who had lost his employment as a result of a drug conviction could not rely on such a loss of employment to reduce his support arrears.

She found that due to his criminal behavior on 2 occasions, that

“he is the author of his own destiny and she should not be able to rely on his own misconduct as an excuse to avoid his obligations to his children.  Even though I accept that the father did not commit these offences to avoid his obligation to pay child support, the court should not condone such conduct.” (para. 43)”

            Birkett v. Love, 2017 ONSC 8148 (CanLII) at 44-46

“In 2013, Justice Czutrin commented that unresolved issues of disclosure are one of the key factors in delay, unproductive court attendances and getting to a point of serious settlement discussions or, if necessary, in the very few cases that need to go or in fact end up in trial. See English v. Dixon, 2013 ONSC 8043. This comment is just as relevant and problematic today as it was at the time of the decision.

Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC), 137 A.C.W.S. (3d) 988 (ONSC) at paras. 8 and 15. Disclosure orders must be fair to both parties and appropriate to the case.

As Perell J. held in Boyd v. Fields, [2007] W.D.F.L. 2449 (ONSC) at paras. 12-14:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules.  A party’s understandable aspiration for the utmost disclosure is not the standard.  Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors.  I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.

Finally, Justice Benotto in Roberts v. Roberts, 2015 ONCA 450 (CanLII) stated:

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent, and the final adjudication is stalled.”

Atis v. Atis, 2019 ONSC 7553 (CanLII) at 89-92

“If minutes of settlement are incorporated into a court order, the order is to be varied having regard to s.17 of the Divorce Act.

In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 the Supreme Court of Canada considered the approach to an application to vary a spousal support order under s. 17(4.1), where the support terms of an agreement have been incorporated into a divorce order.

From L.M.P., I draw the following principles, which are applicable to this case:

a)  the change referred to in s. 17(4.1) must have occurred since the making of the spousal support order sought to be changed:  para. 29;

b)  the onus is on the party seeking the variation to establish the change:  para. 31;

c)  relying on Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, the court held that the change in circumstances must be a material one that “if known at that time, would likely have resulted in a different term”:  paras. 32 and 33;

d)  what amounts to a material change will depend on the actual circumstances of the parties when the order in question was made:  para. 34;

e)  the material change must have some degree of continuity and not merely be a temporary set of circumstances:  para. 35;

f)  the agreement given effect to by the original order is to be considered:  para. 37;

g)  the degree of specificity of the terms contained in the order is important to the material change analysis:  para. 39; and

h)  where an agreement incorporated into an order implies finality, the court’s jurisdiction under s. 17 is not ousted by that agreement:  para. 41.

The test for material change is not based on what one party knew or reasonably foresaw.  Rather, the test is based on what the parties actually contemplated when they entered into the agreement:  Dedes v. Dedes, 2015 BCCA 194, at para. 25.  In other words, the change relied upon as being material is one that was not one considered, or taken into account, when the agreement was made.  The court is to look back to consider what was previously taken into account.

A review of the terms of the order will assist in determining what was considered.”

Johnston v. Johnston, 2019 ONSC 5946 (CanLII) at 100-104

“Commentary 1 of Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Ontario provides the foundational duty of zealous representation of every litigation lawyer:

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

What is too often overlooked however is that the duty is not unbounded. Lawyers are not champions fighting a trial by battle. They are licensed professionals assuring the parties and society that justice will be served. The client is not entitled to win at all costs. But every client is entitled to a fair process in which she will have every proper opportunity to state her case and have the facts found and the law applied by an independent and dispassionate judge or trier.

After stating the litigator’s basic duty, the very next sentence of Commentary 1 of Rule 5.1-1 provides this overarching context:

The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. [Emphasis added.]

The goal of zealous representation – of raising fearlessly every issue no matter how distasteful – is to ensure the fair hearing of the case for both parties (plural). The duty of zealousness does not require scorched earth. It requires the raising of issues consistent with the fair resolution of the matter.

It is the commitment to the fairness of the process that makes the civil justice system just. It gives the system legitimacy and justifies the societal requirement that disputes be resolved with professionals committed to justice rather than by mercenaries brandishing flamethrowers. To that end, in a civil case, counsels’ duties require them to cooperate to find the most efficient, affordable, and proportionate adjudication process for the fair resolution of their clients’ disputes.

The Supreme Court of Canada has demanded that a fair process remains paramount in civil justice, especially in relation to efficiency and affordability:

[23]   Our civil justice system is premised upon the value that the process of adjudication must be fair and just.  This cannot be compromised.

[24]   However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See: Hryniak v Mauldin, 2014 SCC 7 at para. 23.”

Slota v. Kenora-Rainy River Districts Child and Family Services, 2020 ONSC 8105 (CanLII) at 15-20

“The Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 24-26, explained the doctrine of the presumption of resulting trust as follows:

24     The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

25     The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

In Kerr, at para. 18, the Supreme Court of Canada explained how trial courts should consider the presumption of resulting trust:

18     The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention” [emphasis added].

The presumption of resulting trust applies when a parent makes a gratuitous transfer to an adult child: see Pecore, at para. 36. The presumption is that the adult child is holding the property in trust for the aging parent.  In other words, the parent holds an interest in the subject asset whether it is real property, money loaned or some other item.  The parent is presumed not to have intended a gift.  However, this presumption can be rebutted by the evidence.

Clearly, the evidence necessary to rebut the presumption depends on the facts of the case: see Pecore, at para. 55.  Evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer: see Pecore, at para. 59.”

            Barber v. Magee, 2015 ONSC 8054 (CanLII) at 38-41