Category: Uncategorized

“The single issue is whether the applicant may bring a motion to the court or whether she must follow the process in the parties Interim Parenting Agreement dated September 23, 2019.

That provision provides as follows:

6.1 If Jennifer and Keith disagree about any parenting issue or child support, they will first try to resolve the dispute through negotiation, either between themselves or with their respective counsel, on the following terms:

(a) The parties will jointly retain Julie Guindon to act as a mediator/arbitrator/Parenting Coordinator. The parties shall share the up-front costs of the process equally.

(b) Julie Guindon shall retain the right to apportion costs between the parties during any of these processes.

(c) Julie Guindon’s decision shall be binding on the parties.

(d) If Julie Guindon must conduct an arbitration, the parties waive section 35 of the Arbitration Act and will constitute a secondary arbitration under the Arbitration Act and the Family Law Act.

The respondent seeks a stay under section 7 of the Arbitration Act, 1991, S.O. 1991, c. 17:

 7 (1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.  1991, c. 17, s. 7 (1).

         Exceptions

(2) However, the court may refuse to stay the proceeding in any of the following cases:

1. 1. 1. 1. 1. A party entered into the arbitration agreement while under a legal incapacity.

1. 1. 1. 1. 2. The arbitration agreement is invalid.

1. 1. 1. 1. 3. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

1. 1. 1. 1. 4. The motion was brought with undue delay.

1. 1. 1. 1. 5. The matter is a proper one for default or summary judgment.

The respondent maintains the Interim Parenting Agreement is a binding arbitration agreement. The parties entered into it with independent legal advice provided by each of their counsel.  He says the agreement makes the agreed upon alternate dispute resolution process mandatory and shows an intention to execute a formal secondary arbitration agreement in future when necessary.

The applicant maintains the provision does not bar her from proceeding to court.  She relies on provisions of the Arbitration Act and the decision in Horowitz v. Nightingale, 2017 ONSC 2168 (CanLii).

For reasons that follow I conclude that the Interim Parenting Agreement is not a bar to the applicant proceeding in court and that the stay motion should be dismissed.  Parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.

The situation might be different if the parties had expressly undertaken in their agreement to execute an arbitration agreement that complies with the governing Act and Regulation. In that situation, the court might order the party in breach to comply with their undertaking.    The Interim Parenting Agreement does not include such an express provision.

Prudence dictates that family litigants wishing to provide for a potential future arbitration should append a detailed family arbitration agreement containing the mandatory terms to their settlement document and should agree to complete and execute the agreement in the form attached, at the appropriate time.”

         Magotiaux v. Stanton, 2020 ONSC 4049 (CanLII) at 1-8.

“Rule 11(3) of the Family Law Rules provides that:

On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

In Moghini v Dashti, 2016 ONSC 2116, the court held that a motion to amend should be allowed unless:

a)     the amendment would cause an unjust process that cannot be fixed by an adjournment or costs.

b)    the amendment proposed is untenable (i.e. not properly pleaded and not prima facie meritorious in law). or

c)     the amendment is made in bad faith.

In Smith v. Smith, 2021 ONSC 1990, Chappel J. recently provided an excellent summary of the legal principles respecting amendment to pleadings in family law. I adopt her analysis and set out the applicable principles in the case at bar:

a)     The starting point is Rule 11(3) of the Family Law Rules. (Para. 15)

b)    One of the purposes of amendments is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. (Para. 17)

c)    The central question on a motion to amend a pleading is whether the amendment will cause disadvantage to the opposing party that cannot be remedied through costs or an adjournment. Non-compensable prejudice may be actual or presumed. The disadvantage will be actual where the moving party could lose an opportunity or suffer an unjust burden in the litigation as a consequence of the proposed amendment that cannot be redressed through cost or an adjournment. The onus of proving actual disadvantage lies on the party opposing the amendment. Where the opposing party relies on actual disadvantage, they must set out evidence respecting such disadvantage with sufficient particularity to permit the party pursuing the amendment to respond, and to allow the court to take a hard look of the merits of the prejudice claim. (Para. 18)

d)   If the delay in seeking the amendment is so lengthy and the justification so inadequate, prejudice to the responding party will be presumed. (Para. 19)

e)   In order to avoid a proposed amendment, the non-compensable disadvantage relied upon must be casually connected with the amendment and must not flow from some other source. (Para. 20).

f)    A proposed pleading that fails to set out material facts should be refused or the court at a minimum can request more details from the moving party before determining whether to permit it. A proposed amendment that is inflammatory, a waste of time, a nuisance, frivolous or vexatious or an abuse of process should not be allowed. (Para. 21)

g)     If the request to amend is motivated by bad faith, the amendment must be refused. (Para. 23).

h)    The following general principles apply in determining whether the proposed amendment raises a reasonable claim or defence in law:

(i)   The amendment must be granted unless it is “plain and obvious” that it discloses no reasonable claim or defence in law.

(ii)   The court must assume that the facts relied on for the proposed amendment are true, unless patently ridiculous or incapable of proof, and the only question is whether the disclosed a reasonable cause of action. It is not necessary for the moving party to tender evidence to support the claims or for the court to consider whether they are able to prove the amended claim.

(iii)  General concerns regarding the strength of the factual and\or legal bases for the proposed amendment will not suffice to prevent the requested amendment.

(iv)  The court will construe the proposed amendment generously and overlook inadequacies that are merely the result of drafting deficiencies.

(v)   Proposed amendments should not be denied as being legally untenable solely on the basis they raise novel legal issues or questions of law that are not yet fully settled. (Para. 22)”

Bouzanis v. Bouzanis, 2021 ONSC 5330 (CanLII) at 22-24.

“The parties agree that the general law of contracts applies in the family law context such that settlement agreements are generally enforceable where there is a meeting of the minds: Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.) (CanLII) at paras. 32-42; see also Gorman v. Gorman, 2021 ONSC 2577 (CanLII) at paras. 64-69.

Here, the Mr. Humphrey says that the Agreement should not be enforced because Mr. Williams repudiated the Agreement thereby depriving Ms. Williams of its benefit, and that Ms. Williams accepted Mr. Williams’ termination. Mr. Humphrey points to the emails as evidence that Mr. Williams repudiated the Agreement after retaining Mr. Cohen because Mr. Cohen refused to confirm the Agreement prior to the offer’s expiry on September 17th, and because a Settlement Agreement was not signed in a timely manner.

The law of repudiation is summarized by the Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 at paras. 29-32:

Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 2000 SCC 25 (CanLII), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]

The test for repudiation is objective, requiring me to consider whether a reasonable person, considering the surrounding circumstances, would conclude that the breaching party no longer intends to be bound by the contract: Remedy Drug Store Co. v. Farnham, 2015 ONCA 576 (CanLII), at para. 45-46.

Dennison J. in Gorman, supra, at para. 70, helpfully summarized the factors I am to consider when determining whether to enforce a contract in the family law setting, including: whether the parties were represented by counsel, whether the written material supports a prima facie agreement, whether the evidence supports a shared intention to be bound by the written negotiations, whether there was some final act or determination required prior to the settlement being final and binding, and any injustice occasioned by enforcing or not enforcing the agreement. At a policy level, I am to consider whether enforcement would encourage negotiated settlement and discourage litigation.”

            Andrews v. Andrews, 2022 ONSC 3867 (CanLII) at 16-20

 

“A finding of unjust enrichment requires the establishment of three elements: enrichment, a corresponding detriment and an absence of a juristic reason for the enrichment.  The remedies for unjust enrichment include monetary awards, and constructive or resulting trusts.

A resulting trust will arise when title to a property is in one party’s name, but that party, because he or she is 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 (CanLII), [2007] 1 S.C.R. 795, at para. 20.

In the present case, the properties were not transferred to Charbel Kajjouni by the other family members.  Rather, the other family members assert that they funded the purchase of the properties, either from their own resources, or from mortgages that they negotiated and assumed responsibility for.  In other words, the family members assert the existence of a purchase money resulting trust which presumes that a person who advances purchase money, but does not take title to a property, intended to assume a beneficial interest in the property in proportion to his or her contribution to the purchase price:  Nishi v. Rascal Trucking Ltd., 2013 SCC 33 (CanLII), [2013] 2 S.C.R. 438, at para. 29.  For the presumption of a purchase money resulting trust to apply, the persons claiming to be beneficial owners must first show that they were the ones who advanced the purchase money:  Bao v. Mok, 2019 ONSC 915, at para. 69.

Kajjouni v. Kajjouni, 2022 ONSC 3757 (CanLII) at 11-13

“The applicable legal principles include the following:

a.  Section 2of the Partition Act empowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil 2020 ONSC 1225 (SCJ).

b.  A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.  Kaphalakos v. Dayal2016 ONSC 3559 (SCJ); Marchese v. Marchese  2017 ONSC 68515 (SCJ); Jama v. Basdeo  2020 ONSC 2922 (SCJ); Davis v. Davis 1953 CanLII 148 (ON CA); Brienza v. Brienza 2014 ONSC 6942 (SCJ).

c.  A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.  Jama v. Basdeo; Steele v Doucett2020 ONSC 3386 (SCJ).

d.  The other joint tenant has a corresponding obligation to permit the sale.  These are fundamental rights flowing from joint tenancy. Steele v Doucett.

e.  The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.  Afolabi v. Fala, 2014 ONSC 1713(SCJ).

f.  Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issuein order to avoid the sale. Silva v. Silva  (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett.

g.  Each case must be considered on its own facts.  The court must consider all relevant factors in exercising its discretion.  Davis v. Davis1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Steele v Doucett.

h.  In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined.   Maskewycz v. Maskewycz (1973) 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (ON CA).

i.  The Family Law Actdoes not displace the Partition Act.  But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.  Silva v. Silva;  Parent v. Laroche 2020 ONSC 703 (SCJ); Latcham v. Latcham (2002) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066 (SCJ).

j.  In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole.  Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.  Zargar v Zarrabian2016 ONSC 2900 (SCJ); Giglio v Giglio 2015 ONSC 8039 (SCJ); Keyes v. Keyes 2015 ONSC 1660 (SCJ).

k.  More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.  Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households.   Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.  The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing.  Delongte v. Delongte2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ).  The availability and affordability of alternate housing must be considered.  As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.  Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.  Fernandes v Darrigo2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.  Kereluk v. Kereluk, 2004 CanLII 34593 (SCJ).

n.  Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage.  The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718(SCJ).

o.  On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.  The stage of a child’s academic progress might also be relevant.  Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school.  On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.  But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale.  A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient.  The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.  A pending equalization claim may also be relevant.  The court cannot compel one joint tenant to sell to the other.  Martin v. Martin1992 CanLII 7402 (ON CA).  Nor can it give either joint tenant a right of first refusal.   Dibattista v. Menecola 1990 CanLII 6888 (ON CA).  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home.  If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry 2012 ONSC 2149 (SCJ).

s.  The court must consider and attempt to guard against potential prejudice.  Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?”

          Dhaliwal v. Dhaliwal, 2020 ONSC 3971 (CanLII) at 16

“The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
      2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
      3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

…

It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.”

            Moncur v. Plante, 2021 ONCA 462 (CanLII) at 10 & 20

“A plaintiff in a defamation case does not need to prove that they suffered a financial loss in order to be awarded damages:  Mudford v. Smith, 2009 CanLII 55718 (ON SC), [2009] O.J. No. 4317 (S.C.J.), aff’d 2010 ONCA 395.  As Justice Perell observed in Mina Mar Group v. Divine, 2011 ONSC 1172, at para. 13, general damages in defamation cases serve three purposes: (1) to compensate the plaintiff for the distress suffered from the defamation (2) to repair the harm done to their personal and professional reputation; and (3) as a “vindication of reputation”. This third objective, which may perhaps be more easily understood as “restoration of reputation”, shows that general damages for defamation, unlike damages for other wrongs, may have a purely symbolic function.

Damages for defamation vary significantly.  Ms. Post directed me to four cases — Emeny v. Tomasewski, 2019 ONSC 3298; Rodrigues v Rodrigues, 2013 QBQB 718; Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 OR (3d) 663; and Bains v. 1420546 Ontario Inc., 2011 ONSC 3686 —where courts have awarded general damages from $50,000 to $250,000. This range underscores how general damages awards depends on the facts of each case.

In Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at p. 1203, the Supreme Court of Canada set out factors to consider in assessing damages for defamation. These factors, and the evidence of Ms. Hillier’s actual malice, support a significant damages award in this case.”

          Post v. Hillier, 2022 ONSC 3793 (CanLII) at 24-26

“In P.P. v. D.D. 2017 ONCA 180, Rouleau J.A. concisely summarized the tort of sexual battery at paragraphs 71 and 72:

The constituent elements of the tort of “sexual battery” are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was “harmful” or “offensive”, but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.

An apparent consent to sexual touching will be invalid if has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246-47 S.C.R.”

          W.S. v. R.S., 2023 ONSC 4287 (CanLII) at 14

“Mr. Carducci submits there was a “fundamental mistake”, a “mutual mistake”, a lack of “ad idem”, “hence there is no contract”. Here, Mr. Carducci seeks to rely on equity to advance its position to set aside the Life Insurance provision in the Minutes of Settlement and grant Mr. Carducci ½ of the Life Insurance proceeds. As stated above, the court should be extremely reluctant to set aside one paragraph of the Minutes of Settlement.  Particularly, where many of the other terms have already been complied with.

On the issue of unilateral mistake, the Court of Appeal in Deschenes stated:

[32]      As noted by Côté J.A. in Radhakrishnan, a settlement agreement may also be rescinded on the basis of unilateral mistake. I will explain why I reject the appellants’ submission that the motion judge, after finding a “unilateral mistake by the Diocese”, erred in this case in rescinding the settlement agreement on this basis. The law on rescission for unilateral mistake is that a party may seek rescission of a contract for its own unilateral mistake only where the mistake goes to a material term of the contract, where the other party knows or ought to know of the mistake, and where it would be unconscionable for the second contracting party to rely on the contract: 256593 B.C. Ltd. v. 456795 B.C. Ltd. (1999), 1999 BCCA 137 (CanLII), 171 D.L.R. (4th) 470 (B.C.C.A.), at p. 479. See also Gerald H. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Reuters Canada Limited, 2011), at pp. 252-54; Toronto Transit Commission v. Gottardo Construction Limited et al. (2005), 2005 CanLII 31293 (ON CA), 257 D.L.R. (4th) 539 (Ont. C.A.), at para. 30, leave to appeal refused, [2005] S.C.C.A. No. 491….

First, I am not persuaded that Mr. Carducci has established a “mistake” in law.  In my view, this is a situation where a party now realizes they made a bad deal (at least on one term) and now wants the court to intervene.  In any event, this was a unilateral mistake. I reject Mr. Carducci’s submission that he “did not have all of the details and amounts of the Life Insurance available”. Mr. Carducci was also a policy holder and could easily have ascertained the cash surrender value and the state of the unpaid premiums.   I reject Mr. Carducci’s submission that if all the details and the amounts of the Life Insurance policy were known at the time of the negotiations of the Minutes of Settlement, that it “would have resulted in a different agreement”.  That is hindsight and not a legal basis to overturn a term of an agreement.

Second, for there to be a mutual mistake after the execution of an agreement, there must be evidence that establishes objectively, a mistake was made by both parties. Then, the court has the jurisdiction to set aside the agreement. While, the term “mutual mistake” is loosely used by Mr. Carducci’s counsel, there is no evidence that Mrs. Carducci was subject to the same alleged mistake.”

            Carducci v. Carducci, 2022 ONSC 3683 (CanLII) at 55-58

“The test for whether there has been a material change in the circumstances of the child was described as follows in Goertz, at paras 10-13:

10      Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).

11      The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S. T.D.), at p. 194.

12      What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13      It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Further, a variation of a final parenting order cannot be made on consent unless there is a finding of a material change in circumstances.   In Persaud v. Garcia-Persaud, 2009 ONCA 782, the Ontario Court of Appeal stated:

[3]              To begin with, the motion judge was without jurisdiction to make the order in question.  As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made.  If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485 (CanLII), 52 R.F.L. (6th) 239 (Ont. C.A.).  The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.  In the present case, no such finding was made.  Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4]              A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13.  None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel.  Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.

[5]              Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties.  In such circumstances, a variation motion cannot be properly determined on affidavit material.  As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called.  See this court’s decision in Schnarr v. Schnarr (2006), 2006 CanLII 190 (ON CA), 22 R.F.L. (6th) 52.

A change in circumstances is “material” if it is significant and long lasting: Roloson v. Clyde, 2017 ONSC 3642, paras. 49-51.”

          Kapadia v. Kwok, 2023 ONSC 3700 (CanLII) at 14-16