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“While the Divorce Act does not specifically provide for the interim variation of a final order, the case law that has developed, prior to the most recent amendment, allows for such a variation in the appropriate circumstances. I see nothing in the most recent amendments of the Divorce Act that has altered the provisions regarding variations in any substantial way. Accordingly, the case law that has developed to this point will continue to be of assistance to this court when determining if such a variation is appropriate.  If though, a variation is determined to be appropriate, the new provisions in the Divorce Act regarding the best interests of the child, the avoidance of conflict, and consideration of family violence must be considered when making any order.

In Innocente v. Innocente, 2014 ONSC 7082 (CanLII), Gauthier J. summarized the applicable law as follows:

[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:

(a) To prevent undue hardship;

(b) Where the failure to make the interim order would be incongruous or absurd; and

(c) Where there is a pressing and immediate urgency.

Justice Pazaratz, in F.K. v. A.K., 2020 ONSC 3726 has provided an excellent review of the legal considerations when faced with a request for to change a final order. He sets out the following:

[48]          To determine a request to change custody, access or parenting order, the court must embark on a two-stage inquiry: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).

 [49]          The first step: There must be a material change in circumstances since the last order was made.

a.    There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b.    The change must materially affect the child.

c.    It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S.[2011] SCC 64.

d.    The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e.    If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f.    If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

 [50]          The second step: 

a.    If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b.    In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c.    The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young2003 CanLII 3320 (Ont. CA).

d.    The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).

Pazaratz J. then identifies that when a party seeks a temporary variation of a final parenting order, the court is required to conduct an even more stringent analysis. He states at para. 52:

a.    In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery1992 CanLII 8642 (ON CA); Gordon v. Gordon2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.     And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order — in the appropriate circumstances. Stokes v. Stokes2014 ONSC 1311 (SCJ); Huliyappa v Menon2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.     But the evidentiary basis to grant such a temporary variation must be compelling.

f.     The court must start with the aforementioned two-part material change in circumstances analysis.

g.     But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.     The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i.     The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.    The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.     Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l.     And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.     On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.”

        Tone v. Tone, 2021 ONSC 3747 (CanLII) at 20-23

“In McBennett v Danis 2021 ONSC 3610, the court described “family violence” under the recent amendments to the Children’s Law Reform Act as follows:

1. 1. 1. 1. 85.  The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes.  The examples of conduct that constitute family violence is expansive, but it is non-exhaustive.   The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment….
            86.   The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children.  These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.”

         Bhadauria v. Cote, 2022 ONSC 3088 (CanLII) at 35

“…the fact that the parties agreed not to terminate the support does not prevent a party from returning to court where there is a change in circumstances such as to warrant a variation including the possibility of ending support altogether. As explained by the Supreme Court of Canada in L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, a consent order is always open to variation in the event that a material change in circumstances so warrants. The majority of the Court in L.M.P. stated, at para. 41:

But even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted …. A provision indicating that the order is final merely states the obvious: the order of the court is final subject to s. 17 of the Divorce Act. Courts will always apply the Willick [v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670] inquiry to determine if a material change of circumstances exists. [Citations omitted; emphasis in original.]

In L.M.P., the majority of the Court characterized the “Willick inquiry” as follows, at para. 32:

That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) [v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370] confirmed that this threshold also applies to spousal support variations.”

            Pustai v. Pustai, 2014 ONCA 422 at 18-19

“In Akagi v. Synergy Group (2000) Inc, 2015 ONCA 368 the Ontario Court of Appeal confirmed that the mandate of a receiver appointed under section 101 of the Courts of Justice Act can in appropriate cases include an investigation.   As Blair J.A. stated:

Indeed, whether it is labelled an “investigative” receivership or not, there is much to be said in favour of such a tool, in my view – when it is utilized in appropriate circumstances and with appropriate restraints. Clearly, there are situations where the appointment of a receiver to investigate the affairs of a debtor or to review certain transactions – including even, in proper circumstances, the affairs of and transactions concerning related non-parties – will be a proper exercise of the court’s just and convenient authority under section 101 of the Courts of Justice Act: Agaki, at para. 66”

         Randhawa v. Randhawa, 2021 ONSC 3643 (CanLII) at 50

“Case law provides two different approaches to the nature of an RESP; one view is that it is property and the other is that it is the product of a trust relationship. I will consider the husband’s argument based on both approaches.

In C.S.M. v. W.S.L., 2015 BCPC 252, the court described the nature of an RESP, at para. 17, as follows:

17      The Canada Revenue Agency defines an RESP as a contract between an individual (the subscriber) and a person or organization (the promoter). The subscriber names one or more beneficiaries and the promoter agrees to pay educational assistance payments to the beneficiary who pays income tax on the payments. If the payments are not made to the beneficiary the promoter pays the subscriber. There is a reversionary interest vested in the subscriber.

From this analysis, it may be concluded that the RESP is property and belongs to the parent in whose name it is registered. The exception to this would arise if the other parent can make a trust claim in relation to the RESP.

…

In the Ontario case of McConnell v. McConnell, 2015 ONSC 2243, the court held, at para. 118, that an RESP is not property belonging to or in the possession of either spouse. The RESP is the product of a trust relationship (para. 122). The RESP is a trust fund held by a trustee who is to administer it on behalf of the children who are the beneficiaries (para. 122). Under this analysis, the RESP funds no longer belong to the parent/subscriber but are impressed with a trust in favour of the child/beneficiary. Therefore, the wife is not at liberty under the terms of the trust to withdraw the funds from the RESP to give to the husband. They are to be used for the child’s education. See also Elias v. Elias, 2018 ONSC 3466.”

         N.L. v. X.C., 2022 ONSC 2891 (CanLII) at 56-58, 62

“The Ontario Court of Appeal considered the principles applicable to setting aside a marriage contract in LeVan v. LeVan, 2008 ONCA 388. At para. 50, the court observed:

Section 56(4) of the FLA was designed to address and codify prior concerns maintained by the courts that both parties fully understood their rights under the law when contracting with their spouses. It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550 at paragraph 14. The provision is of such significance that, in accordance with s. 56(7), it cannot be waived by the parties.

The authors of Ontario Family Law Practice 2021, Volume 1, (Coats, Steinberg, Perkins, Lenkinski and James), LexisNexis Canada, Toronto, note at p. 1565 in their annotation to s. 56 of the Act:

… the doctrine of unconscionability is imported into s. 56(4) as part of the law of contract. This doctrine focuses on the circumstances surrounding the formation of the contract.

In addition, s. 33(4) of the Act gives the court jurisdiction to set aside provision for support or waiver of support in a domestic contract if the results of the provision are unconscionable.

As the court explained at para. 51 of LeVan, there is a two-part analysis with respect to whether an agreement should be set aside pursuant to s. 56(4). First, the burden is on the party seeking to set aside the agreement to show that one or more of the circumstances enumerated in this section apply. Second, the court must determine whether to exercise its discretion to set aside the agreement.

At para. 52 of LeVan, the Court of Appeal approved of the conclusion of Madam Justice Mesbur in Patrick v. Patrick [citation omitted] that “parties are not permitted to contract out of the obligation to disclose.”

The court in LeVan, at para. 52, emphasized that in order to contract out of the Family Law Act by means of a marriage contract, parties must have a clear understanding of their rights and obligations under the Act if there were no marriage contract. It described financial disclosure as critical to this process.

The court in LeVan also commented on the importance of financial disclosure and independent legal advice for parties entering into domestic contracts, citing Dubin v. Dubin [citation omitted] at para. 53:

… knowing assets and liabilities at the date of the agreement is fundamental to an eventual calculation of net family property. A party needs to know what asset base might potentially grow, in order to determine what he or she is being asked to give up in the agreement. Coupled with financial disclosure is the notion of understanding legal rights and obligations under the legislative scheme. This second notion carries with it the concept of independent legal advice. Thus, a party must know what assets and liabilities exist at the date of the contract and must understand the general legislative scheme in order to know what he or she is giving up in the proposed agreement.

The trial judge in LeVan relied on Demchuk v. Demchuk (1986) 1986 CanLII 6295 (ON SC), 1 R.F.L. (3d) 176 (Ont. H.C.J.) to conclude that financial disclosure includes disclosure of the value of assets: para. 57. The Court of Appeal decided LeVan on other grounds and did not comment on that conclusion.

However, in Gibbons v. Mulock, 2018 ONSC 4352, at para. 16, the parties’ net worth statements were exchanged as part of the negotiation of a marriage contract. In my view, it is not sufficient to simply disclose the nature of a party’s asset without disclosing its value. To do so may be misleading.

Exchanges of sworn financial statements or statements of net worth are a starting point for understanding what each party gains or loses up upon entering into a marriage contract. They constitute a base line from which future gains or losses may be calculated should the agreement or a portion of the agreement be set aside. Indeed, without a disclosure of value, it may be impossible to accurately calculate the value of debts and assets at the date of marriage in the event that the contract is set aside.”

         Pringle v. Pringle, 2021 ONSC 3677 (CanLII) at 19-28

“The courts have taken various approaches as to how child support should be determined in cases involving children who attend school away from home for all or a part of the year.  A review of these cases reveals that typically, the closer the circumstances of the child are to those upon which the standard Guidelines approach is based, the more likely it is that the standard approach set out in section 3(1) of the Guidelines will be applied: see Weseman v. Wesman (1999), 1999 CanLII 5873 (BC SC).  The various approaches adopted by the courts include the following:

1. 1. 1. 1. 1. In some cases, the courts have determined that the appropriate approach is to calculate the actual costs of providing for the needs of the child during the entire year, factoring in a contribution towards the costs to the recipient of maintaining a residence for the child to return home to on weekends and during the summer, and apportioning the amount between the parents after taking into account the appropriate amount that the child should contribute: see for example Merritt v. Merritt, 1999 CarswellOnt 1471 (Ont. S.C.J.).  Other courts have adopted the same approach, without adding in an amount for the cost to the recipient of maintaining a home base for the children: see for example Johnson v. Johnson, [1998] B.C.J. No. 1030 (B.C.S.C.).
            2. Some courts have made what can be described as “bifurcated orders,” ordering the Table amount for the period of time when the child is residing with the recipient, and directing the parents to each pay a share of the child’s total expenses for the remaining months of the school year, including both living expenses and education expenses, reduced by the appropriate amount of the child’s contribution: see for example Bertram v. Murdock, 2006 CarswellOnt 1394 (Ont. C.J.); Calder v. Purdy, 2005 CarswellNS 521 (N.S.S.C.).
            3. Other courts have adopted the approach set out in subsection 2 above, with the exception that they have also factored in the recipient parent’s costs of maintaining a residence for the child to return home to during the summer and for holidays: Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CarswellOnt 4863 (Ont S.C.J.);  approved of in Marsh v. Jashewski, 2011 CarswellOnt 6196 (Ont. S.C.J.).
            4. The trial judge in Lewiadopted the approach outlined in subsection 2 above, with the exception that she pro-rated the total Table amount payable for the period of time the child would be residing with the recipient during the year over the course of twelve months.   The Ontario Court of Appeal in Lewi determined that this approach would have been appropriate if it had been taken globally pursuant to section 3(2)(b) rather than as a two step analysis involving the determination of an appropriate Table amount and then a section 7 analysis, as the trial judge had done.  It is significant, however, that the court commented that this approach may not be the most appropriate from the perspective of the recipient, in that it fails to recognize the ongoing costs to the recipient of maintaining a home for the child to return to during the summers and other holiday periods.  Thus, the court endorsed the possibility that where the full Table amount of child support is ordered for the time that a child is at home while attending post secondary education, it may be appropriate for the recipient to also receive not only a contribution towards the child’s expenses during the school year but also a contribution towards the cost of maintaining their own residence as a home base for the child.
            5. In other cases, the courts have ordered the Table amount for the months when the child is home during the summer, a specified percentage of the Table amount each month for the months when the child is away at school for the recipient to cover the child’s living needs, and a proportion of the child’s education expenses (i.e. tuition, residence, books and supplies).”

Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII) at 176

“The jurisdiction of the Superior Court to grant an interlocutory injunction is found under s. 101 of the Courts of Justice Act. A Mareva injunction is a “drastic and extraordinary” remedy, one only granted when very strict terms are met. As Favreau J. explained in Paveau v. Ferreira, 2018 ONSC 1573:

46  A Mareva injunction is available to freeze the defendants’ assets where there is a risk that the assets will be moved or dissipated to avoid judgment. It has been described as a “drastic and extraordinary”. It is recognized as extraordinary relief because the courts do not generally grant judgment before a determination of the merits of a claim [References omitted].

The test for granting a Mareva injunction is stricter than the one for an ordinary injunction. That test is explained and described by Perell J. in O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67 as follows:

67  Because procedural law disfavours pre-judgment execution, to obtain a Mareva injunction, a plaintiff must satisfy the normal criteria for an injunction and also several additional criteria. For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment. A Mareva injunction should be issued only if it is shown that the defendant’s purpose is to remove his or her assets from the jurisdiction to avoid judgment. The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction. Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.”

Cummings v. Cummings, 2020 ONSC 3093 (CanLII) at 66-67

“Rule 24(2) of the Family Law Rules, O. Reg. 114/99 provides that the presumption that a successful party to litigation is entitled to costs does not apply in the context of a child protection case. However, this does not mean that a child protection agency is immune from having to pay costs. As correctly pointed out by the motion judge:

[T]he starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children. Costs will generally only be awarded against a children’s aid society in circumstances where the public at large would perceive that the society has acted in an unfair and indefensible manner. A society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome. That said, the society is not exempt from costs, which may be imposed on it where it has acted unreasonably. If a society acts unreasonably in the conduct of its litigation, it should enjoy no special protection as to costs.”

Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379 (CanLII) at 21

“The wife has provided a valuation of her business interests as at the date of separation. However, she has excluded the value of business interests that she claims were gifted or inherited by her during the marriage. In Hamilton v. Hamilton, 1996 CanLII 599 (ON CA), Osbourne, J. explained that in determining a spouse’s net family property,

“The first step required by s.4 is to identify all relevant property. Then ownership has to be determined. At this stage, trust principles may be brought to bear such that ownership of property for net family property purposes is deemed to be different from that which may be recorded in a title document. Once the ownership of property is established, the value of the property at the valuation date must be determined.

Next, the court must determine the relevant deductions and exclusions under s. 4(1) and 4(2) of the Family Law Act. When that exercise is complete, the court calculates each spouse’s net family property and then, following the Act, determines the required equalization payment to be paid by one party to the other. It is at this point that the court considers whether to reduce or eliminate the equalization payment by resort to the provisions of s. 5(6) of the Act.”

The wife is required, therefore, to value her excluded assets. The usual course with respect to excluded property (e.g., inherited property) is to include it all and “back it out” later as the form provides. It does not follow that because property is excluded, i.e., not part of net family property and subject to equalization, that there is no disclosure obligation. In addition, this property may well be relevant for the purpose of the determination of spousal support: Citron v. Citron: 2008 CanLII 71525 (ONSC), at para. 5.”

            Nemetz v. Reiter-Nemetz, 2022 ONSC 2825 (CanLII) at 67-68