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“Rule 61.06(1)(c) [of the Rules of Civil Procedure] permits ordering security for costs for “other good reason.”  As Jamal J.A., as he then was, stated in Heidari v. Naghshbandi, 2020 ONCA 757, 153 OR (3d) 756, at para. 23, any “other good reason” must be: (1) consistent with the purpose for ordering security — namely, that the respondent is entitled to a measure of protection for costs; and (2) fairly compelling, because the residual category is only engaged where the respondent cannot meet the requirements of rules 61.06(1)(a) or (b).” Examples include where the appellant has committed fraud, or taken steps to put assets out of reach such that it may be very difficult to collect costs.

I recognize that security for costs orders are not to be made routinely.  As Jamal J.A. noted in Heidari at para. 6:

Rule 61.06(1) requires a two-stage analysis: first, the respondent must show that they meet the terms of the rule; second, the motion judge must “take a step back” and consider the justness of the order sought in all the circumstances, with the interests of  justice at the forefront….In considering the justness of the order sought, relevant factors include, but are not limited to, the merits of the appeal, any delay in moving for security for costs, the impact of actionable conduct by the respondent on the available assets of the appellant, access to justice concerns, the public importance of the litigation and the amount and form of security sought by the respondent….An order for security for costs is intended to provide ‘a measure of protection’ to the respondent for the costs to be incurred on the appeal, without denying the appellant a chance to pursue an appeal. …. The court must ensure that an order for security for costs is not used as a litigation tactic to prevent a case from being heard on its merits. [citations omitted]”

            Hevey v. Hevey, 2023 ONSC 4864 (CanLII) at 21-22

“The onus is on the contemnor to demonstrate, on a balance of probabilities, that the contemnor has purged his contempt or made best efforts to do so. Mr. Boutin has failed to meet his onus.  If the contemnor fails to purge contempt, then the next step at a contempt hearing is to determine the appropriate penalty. See Stone v. Stone, 2019 ONSC 3214, at para. 18.

In Blatherwick v. Blatherwick, 2016 ONSC 4630, at para. 28, this court held that “the principal reasons for sentencing in civil contempt are to obtain compliance with court orders and to promote a society where the rule of law prevails.”

The court must also be mindful of the primary objective of the FLR, which is to deal with cases justly. See Stone supra at para. 20.

Deterrence is a sentencing goal to prevent further non-compliance by Mr. Boutin specifically and other parties involved in other family proceedings generally. Parties, in family proceedings and all civil proceedings, must know that there are serious consequences for the deliberate and flagrant disobedience of court orders and for failing to make complete and accurate financial disclosure.

Denunciation is also a sentencing goal to maintain confidence to parties in family law proceedings and the general public who use the justice system.  The  rule of law and the administration of justice is seriously undermined where parties can ignore statutory obligations or court orders.

Both goals are particularly important in family proceedings, where the failure to make complete and accurate financial disclosure undermines a just and fair resolution or court determination. And, of course, both goals are important in family proceedings to ensure a party does not take advantage of their failure to make financial disclosure, to hide and dispose of assets – with the intention of defeating or reducing the opposing party’s claim. Unfortunately, this is too common a practice which the court must do its utmost to denounce and hopefully, discourage others to follow.

Rule 31(5) of the Family Law Rules provides judges a wide discretion in imposing sentences for contempt.”

            Boutin v. Boutin, 2022 ONSC 4776 (CanLII) at 49-55

 “In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978 at paras. 57-58, the court set out the first part of the test:

The first part of the analysis in determining child support entitlement for adult children requires the court to ascertain whether the child is in fact still under parental charge. The analysis of this issue focuses in part on whether the child remains financially dependent on the parent (Rebenchuk, at para. 25; Thompson v. Ducharme, 2004 MBCA 42 (C.A.), at para. 14; P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 31). However, the case-law under both the Divorce Act and similar provincial child support legislation establishes that a child can also be under parental charge if they are unable to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 CarswellBC 119 (S.C.), at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459 (C.A.), at para. 6).

In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support (Briard, at paras. 29-30; Lougheed v. Lougheed, 2007 BCCA 389 (C.A.), at paras. 23 and 25; Moore v. Moore, 2014 BCSC 2210 (S.C.), at para. 103; E.B.L.P. v. J.G.S., 2020 BCPC 18 (P.C.), at para. 50).

The analysis must simply look at whether the adult child’s sources of income meet their reasonable needs. In deciding this, the court should also consider the reasonable expectations of the adult child in light of the means of the parents. In Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (CA), at para. 171 the court stated:

It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated.

The “causes” of the inability that are permitted under the Divorce Act

In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978, at para. 59, the court set out the second part of the test:

Assuming that the court determines that the adult child is under parental charge and unable to withdraw from that charge or to obtain the necessaries of life, the second part of the entitlement analysis requires the court to determine whether the child’s inability to do so is due to illness, disability, or “other cause.” Section 2(1)(b) of the Divorce Act leaves open the question of what “other cause” would justify an order that a child who is of the age of majority or older remains entitled to child support from a parent, and the case-law establishes that the phrase is to be interpreted broadly (Olson, at para. 14; K.M.R. v. I.W.R., 2020 ABQB 77 (Q.B.), at para. 37).”

            Brun v. Fernandez, 2023 ONSC 4787 (CanLII) at 11-13

“The Applicant seeks a preservation order under section 12 of the Family Law Act to make the Respondent solely responsible for the St Germain mortgages for a period of time.

The Applicant correctly notes that this Court’s jurisdiction under section 12 extends to mandating a spouse to make ongoing mortgage payments: Proc v. Proc 1992 CanLII 13991 (ON SC).

As a species of interim or interlocutory relief, a preservation order is subject to the following considerations:

a.   the relative strength of the moving party’s case;

b.   the balance of convenience (or inconvenience); and

c.   irreparable harm.

Bronfman v Bronfman, 2000 CanLII 22710 (ON SC) at para 28.

Bronfman, supra, further states the following propositions:

a.    Section 12 is intended to “protect the spouse’s interests under theFamily Law Act, so that if a spouse is successful in obtaining relief under the Act, there are assets available to satisfy that relief”;

b.    When considering “the relative strength of the plaintiff’s case” and the “balance of convenience (or inconvenience)” the court should consider the likelihood the moving party will receive an equalization payment and, if there is, any risk that the property will be dissipated prior to trial; and

c.    Determining the relative weight of the moving party’s case “is a delicate matter which will vary depending upon the context and the circumstances”, as well as “the degree of predictability which the factual and legal issues allow”.”

S.M. v. H.R., 2024 ONSC 4639 (CanLII) at 53-56

“The Applicant father submits that the CIBC RESP is the property of the parties and that this Court has the authority to split the jointly subscribed CIBC RESP into two plans such that each party would be the sole subscriber of a plan.

Leaving aside for the moment the issue of whether the CIBC RESP is the property of the parties, the Applicant did not identify the statutory authority to make the Order sought, although he did rely on Virc v. Blair, 2016 ONSC 49, 80 R.F.L. (7th) 124; Popovski v. Pirkova, 2017 ONSC 2363, [2017] O.J. No. 1888; Chong v. Donnelly, 2021 ONSC 5263, [2021] O.J. No. 4105; and Christakos v. De Caires, 2016 ONSC 702, [2016] O.J. No. 512.

In Christakos, the Court ordered that the parties shall equally divide any RESPs accumulated during the marriage on a 50/50 basis. However, this decision is not helpful as it appears to have been made on consent. There is no discussion in the decision of the circumstances or analysis that led to this relief being granted.

In none of the other cases relied upon by the Applicant did the Court split an RESP into two plans. Instead, in Virc and Chong, the Court indicated that withdrawals from an RESP could be used to offset their contributions towards section 7 expenses for post-secondary education expenses: See Virc, para. 425(b) and Chong, paras. 73, 75 and 76. Finally, Popovski states that nothing more than funds withdrawn from an RESP can be taken into account in apportioning a parent’s obligations to contribute to the cost of post-secondary education.

I am not satisfied that this Court has the legal authority to order that an RESP be split into two other RESPs. The Applicant father’s motion to split the CIBC RESP is dismissed.”

            Labatte v. Labatte, 2022 ONSC 4787 (CanLII) at 38-42

“Counsel agreed that, if parents cannot agree on which school their child should attend, and the court is called upon to make the decision, the best interests of the child govern. (Askalan v. Taleb, [2012] O.J. No. 3947 at para. 32 (S.C.J.))

In Thomas v. Osika, 2018 ONSC 2712 (CanLII), [2018] O.J. No. 3321 (S.C.J.), at paragraph 37, Justice Audet set out a number of general principles taken from the caselaw “to assist the decision-maker” when making a decision of this nature in the child’s best interests. They include:

a.   a consideration of the child’s unique needs, circumstances, aptitudes, and attributes;

b.   focusing on the interests of the child rather than those of the parents, or their rights;

c.   whether a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage;

d.   assessing any impact on the stability of the child, which may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new childcare providers or other unsettling features;

e.   a consideration of any problems with the proposed schools; and

f.   a consideration of the resources that each school offers in relation to a child’s needs, rather than on proximity of either school to the residence of one parent or the other, or the convenience that the child’s attendance at the nearest school would entail.”

Roberts v. Symons, 2023 ONSC 4757 (CanLII) at 49-50

“The governing test for determining decision-making responsibility, primary residence and parenting time is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s.24, as amended SO 2020, c.25, Sched 2, s.6 (“CLRA”).

Section 16(1) of the Divorce Act provides the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.), s.16(2) (“Divorce Act”); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) (“CLRA”).

Contact may be restricted if it conflicts with the children’s best interests. It is important to remember that parenting time is not the right of the parent but that of the child and when considering parenting time, it should be with a child-focused approach.

As set out by Pazaratz, J. in K.M. v. J.R., 2022 ONSC 111, at para 50, the court is required to look at and consider each child’s specific situation as follows:

a.    The list of best interests factors in the Actis not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ).

b.    None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching.

c.    No single criterion is determinative.

d.    The weight to be given to each factor depends on the circumstances of the particular child.

e.    The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480.  W.H.C. v. W.C.M.C., 2021 ONCJ 308 (OCJ); Harry v. Moore, 2021 ONCJ 341 (OCJ).

f.     An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

g.    The focus is on the child’s perspective.  Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child.  Young v. Young, 1993 CanLII 34 (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264 (SCJ).

In addition, the court is required to consider whether there has been any family violence, and if so, the impact of the violence on the children, and on the ability and willingness of any parties to care for and meet the needs of the children, when assessing the best interests of the children. V.M.W. v. J. Mc.-M., 2021 ONCJ 441.

Section 16(4) sets out a further set of factors to consider when considering the impact of family violence. The definition of “family violence” in the Divorce Act is not limited to physical acts but also includes psychological and financial abuse. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615 (CanLII). This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199; V.R. v. S.R., 2024 ONCJ 262.

Courts allocating parenting time are required to consider that “a child should have as much time with each spouse as is consistent with the best interests of the child”: Knapp v Knapp, 2021 ONCA 305. It is important to acknowledge the starting point after separation is not equal parenting time, but rather what is in the best interests of the child.”

Riley v. Riley, 2024 ONSC 4583 (CanLII) at 30-37

“In some of choice of school cases, decisions that were made by parents prior to separation are a factor that has been considered: Askalan v. Taleb, 2012 ONSC 4746, at para. 32. This is so because such decisions may be considered evidence of what the parents thought was in the child’s best interest at the time: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 at 431.”

            Melbourne v. Melbourne, 2023 ONSC 4678 (CanLII) at 13

“In his Reasons, Faieta, J. set out that the test for an advance equalization payment, has been identified as the Zagdanski factors, arising from the decision of Zagdanski v. Zagdanksi, (2001), 2001 CanLII 27981 (ON SC), 55 O.R. (3d) 6 (Ont. S.C.J.) where a partial equalization payment was advanced. The Zagdanski factors are:

a)  There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

b)  There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of  an equalization payment;

c)  There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action;

d)  There may be other circumstances such that fairness requires some relief for the applicant: frequently, but not necessarily, there will have been den in the action, deliberate or otherwise, prejudicing the applicant by, for example, running of the cost.”

Eskandari v. Rowshani-Zafaranloo, 2021 ONSC 6083 (CanLII) at 30

“A hearing under the Hague Convention is not a custody hearing. It is aimed at “enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Balev, at para. 24; Hague Convention, art. 1. It is meant to restore the status quo that existed before the wrongful removal or retention. Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access: Balev, at para. 24.

Article 13(b) of the Convention sets out a narrow exception to the mandatory return of a wrongfully abducted child. The parent opposing return must establish “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” This grave risk analysis is not meant to become an in-depth analysis of the parties’ history. Nor is it a re-do of extensive court proceedings in the foreign state.”

          Leigh v. Rubio, 2022 ONCA 582 (CanLII) at 24-25