Category: Uncategorized

“A resulting trust may be imposed to return property to the person who paid for the purchase and is beneficially entitled to it, from the person who has title to it: Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436.  In family law, the cases generally deal with situations of gratuitous transfers between spouses.

In Kerr v. Baranow, 2009 BCCA 111, the Court of Appeal said, at para. 42: “a resulting trust is an equitable doctrine that, by operation of law, imposes a trust on a party who holds legal title to property that was gratuitously transferred to that party by another and where there is evidence of a common intention that the property was to be shared by both parties.”

…

The Supreme Court of Canada in Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4^th) 621 (S.C.C.) held that the following three elements must be proven on a balance of probabilities to succeed in a claim for unjust enrichment: (a) an enrichment; (b) a corresponding (causally connected) deprivation; and (c) an absence of juristic reason for the enrichment: at page 630.

In Kerr v. Baranow 2011 SCC 10, Justice Cromwell sets out the Court’s analysis of the remedies for unjust enrichment at para. 100:

a.   The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b.   Wherethe unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.

c.   To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

d.   Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

Where the contributions of both parties over time have resulted in an accumulation of wealth, unjust enrichment occurs when one party retains a disproportionate share of assets that are a product of their joint efforts following the breakdown of the relationship.  While the law of unjust enrichment does not mandate a presumption of equal sharing, the decision whether to award a party a proprietary interest or monetary payment must reflect the true nature of the enrichment and the corresponding deprivation.”

         Westlake v. Ellicock, 2022 ONSC 1980 (CanLII) at 34-35, 38-40

“It must be noted that “achieving the 40 per cent threshold does not necessarily mean that less child support will be paid, but only that the court can consider the issue under s. 9 of the Federal Child Support Guidelines” (Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169).

In fact, it is not that the “court can”, but rather, the court must proceed under s. 9 when the 40 per cent access threshold is achieved. It is clear from the wording of the legislation that s. 9 is imperative; therefore, when the court finds that a parent is exercising access or custody 40 per cent or more of the time, the court must fix child support in accordance with the three factors listed in s. 9 of the FCSG.

Under s. 9 there is no presumption that the Guideline support amount is appropriate. Rather, support is determined by applying the three factors, informed by the evidence provided by the parties.

The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997] O.J. No. 6335; Huntley v. Huntley, 2009 BCSC 1020, [2009] B.C.J. No. 1509). In this case that rests with the father.”

            L.L. v. M.C., 2013 ONSC 1801 (CanLII) at 19-22

“A useful summary of the test for whether there has been a material change in circumstances was set forth in the case of Poulter v. Poulter, 2005 BCCA 227 (B.C.C.A.) at para. 11 as follows:

The changes must be such that they were not known to the parties or to the judge at the time when the first final support order was made. Second, they must be such that they could not reasonably have been in contemplation of the parties or the judge. The third is that if they had been known, a different order would have been made than the one that was actually made. And fourth, that the different order would have been different in respect of the weight and consequences of the change and would have taken into account the change to make an alteration in the result.

In the case of Boston v. Boston, 2001 SCC 43 (S.C.C.) Major, J., writing for the majority, noted at para. 61 that on retirement, the pension-holding spouse may apply to vary a support order if his ability to pay support is compromised, and that the decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances.

A material change of circumstances will vary from one case to another, particularly in relation to foreseeability. Retirement from employment can be a change of circumstances even if it is clearly foreseeable: Stones v. Stones: 2004 BCCA 99, at para. 15. (See also Schulstad v. Schulstad, 2017 ONCA 95 (C.A.) at para. 31 and Arthur v Arthur, 2018 ONSC 6682 (S.C.J.) at para. 42)”

Lorimer v. Lorimer, 2020 ONSC 1923 (CanLII) at 44-47

“In D.B.S. the court identified four primary considerations:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

None of the above factors are decisive or take priority and all should be considered in a global analysis.   In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

In Michel v. Graydon 2020 SCC 24 the Supreme Court recently revisited these principles.  The commentary includes the following:

a.   Parents know they are liable to pay support in accordance with the Tables, based on their actual income.  They know they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic.

b.   The obligation to support your child exists even if the other parent has not (yet) started a court case.

c.   Retroactive child support is a debt.  It represents money that should have been paid.  Presumptively, the money is owing and should still be paid, unless there are strong reasons not to do so.

d.   Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations.

e.   The court must be aware of the gender and social dynamics which permeate child support law.   When we assess the reasonableness of actions and behaviours by support recipients – and the reality is that they are predominantly women – we must take into account all of their experiences, challenges, vulnerabilities, financial limitations, fears, danger, and perceptions as to their actual options.

f.   The neglect or refusal to pay child support is strongly linked to child poverty and female poverty.

g.   There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations.

 Michel v. Graydon refines the approach to be taken on the issue of delay:

a.   Rather than ask whether there was a “reasonable excuse” for any delay in bringing an application, the court should examine whether the reason for the delay is “understandable”.

b.   A delay, in itself, is not inherently unreasonable.  The mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.

c.   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.   A delay is likely to be more understandable if it is motivated by any one of the following reasons:

1. 1. 1. 1. 1. Fear of reprisal/violence from the other parent.
            2. Prohibitive costs of litigation or fear of protracted litigation.
            3. Lack of information or misinformation over the payor parent’s income.
            4. Fear of counter-application for custody.
            5. The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
            6. Illness/disability of a child or the custodian.
            7. Lack of emotional means.
            8. Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
            9. Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
            10. The deliberate delay of the application or the trial by the payor.

e.   Delay by a recipient does not constitute a waiver or abandonment of a right to claim the appropriate amount of support which should have been paid.

f.   It is generally a good idea to seek child support as soon as practicable.  But it is unfair to bar parents from applying for the financial support they are entitled to, simply because they put their safety and that of their children ahead of their financial needs; or because they did not realistically have the ability to access justice earlier.

g.   Even if the delay is unreasonable, this does not negate blameworthy conduct by the payor.  Indeed, blameworthy conduct may have caused or contributed to the delay.

h.   Delay is not determinative.  It is one factor and should not be given undue weight.”

Abumatar v. Hamda, 2021 ONSC 2165 (CanLII) at 53-55

“All parties agree that the inability of J.T.’s biological parents to care for her directly engages the CYFSA.

The paramount purpose of the CYFSA, set out in s. 1(1), is to promote the best interests, protection, and well-being of children. The CYFSA sets out additional purposes that apply to all children in s. 1(2), such as supporting the autonomy and integrity of the family unit, using the least disruptive course of action, and individualizing services to a child in a manner that:

i.   respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment;

ii.   takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;

iii.     takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;

iv.    takes into account a child’s or young person’s cultural and linguistic needs;

v.    provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests; and

vi.    includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

Importantly, s. 1(2) of the CYFSA includes an additional purpose distinct to First Nations, Inuit and Métis peoples: wherever possible, they should be entitled to provide their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

“Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.

Customary care under the CYFSA

What is “customary care”? The concept is defined in s. 2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”. I note the use of the word “person” and not “agency” in this definition.

Customary care is the preferred approach for Indigenous children. Section 80 of the CYFSA requires a society to “make all reasonable efforts” to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child:

1. 1. 1. 1. 1. a.   is in need of protection;
            2. b.   cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and
            3. c.   is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

The practice of customary care arose as an alternative to court-related processes and court-ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities.

Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.

Like any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA. The child’s legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care: see Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen’s Printer for Ontario, 2013) (“MCYS Guide”).

Customary care does not operate outside judicial oversight. As Justice Wolfe noted in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become engaged where there is evidence of bad faith or improper procedure:

I find that the CYFSA does not include statutory timelines that need to be strictly enforced by courts regarding customary care. In choosing that path, the parties to a [customary care agreement] agree that it is in the child(ren)’s best interests to avoid adversarial child protection proceedings in Canadian courts. This is subject to evidence of bad faith or improper procedure which could render placements made out of court invalid. [Emphasis added.]

Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R., at paras. 68-69.”

M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240 (CanLII) at 30-40

“Subrule 7(5) of the Family Law Rules states that a court may make an order to add any person that should be added as a party.

The test for adding parties to a proceeding was set out in Noik v. Noik, 2001 CanLii 27970 (ON SC): can the issue between the applicant and the respondent be effectually and completely settled without the addition of the non-parties; and, will the relief sought by the applicant directly affect the non-parties?”

         Hill v. Green, 2022 ONSC 1789 (CanLII) at 13-14

“The burden of proof for setting aside a domestic contract is on the person alleging that the domestic contract is invalid. The party seeking to escape the effect of the agreement has the onus to show that there are grounds for setting it aside (see Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (Ont. C.A.), at para. 11, Loy v. Loy, [2007] O.J. No. 4274 (Ont. S.C.J.), at para. 161), Shair v. Shair, [2015] O.J. No. 4883 (Ont. S.C.J.) at para. 44).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract. It is desirable that the parties should settle their own affairs if possible, as they are more likely to accept their own solution to their problem than one imposed on them (Farquar v. Farquar, [1983] O.J. No. 3185 (Ont. C.A.), at paras. 19-20, Harnett v. Harnett, 2014 ONSC 359, [2014] O.J. No. 237 (Ont. S.C.J.), at paras. 87-88)).

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, supra,

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other, or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan. 2008 CarswellOnt 2738, ONCA.”

         S.(J.) v. S.(D.B.), 2016 ONSC 1704 (CanLII) at 27-29

“In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at 15, the Supreme Court described the doctrine of mootness as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.

The Court went on, at para. 16, to prescribe a two stage analysis in circumstances where a case may be moot:

16        The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.”

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 (CanLII) at 28-29

“The applicable principles to be considered a motion for sale of jointly owned properties during family law proceedings were set out in Dhaliwal v. Dhaliwal (2020) ONSC 3971, at para. 16:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home.

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.

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

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.

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.

g.   Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion.

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.

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.

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.

…

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. 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.

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.

…

r.   A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal.  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.

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? [Citations omitted.]

The Divisional Court, in Nogueira v. Nogueira, 2021 ONSC 7564, at para. 3, recently cited Dhaliwal with approval.

Neither Dhaliwal not Nogueira involved farms, but the above principles remain applicable here. However, s. 11(1) applies to farms so additional considerations are in play.”

            Urness v. McDonald, 2022 ONSC 1697 (CanLII) at 9-11

“Separation in the context of family law litigation presumes that cohabitation no longer exists.  Pursuant to s. 1(1) of the Family Law Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.  Cohabiting is something more than simply sharing the same address.  Parties may not be cohabiting even if living under the same roof.  Separation has been described as the point in time when either party regards the relationship as being at an end and by his or her conduct demonstrates that this is a settled intention.  A much-cited case addressing the issue of cohabitation and determination of whether parties are spouses under the legislation is Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376.  In that case, Kurisko J. reviewed a considerable bank of law relating to cohabitation and listed areas that he considered relevant to determining whether a spousal relationship exists.  These considerations are equally important when deciding the question of whether and/or when a separation actually has occurred. Found at para. 16 of this decision, the list entails:

(1)         SHELTER:

(a)    Did the parties live under the same roof?

(b)    What were the sleeping arrangements?

(c)    Did anyone else occupy or share the available accommodation?

(2)         SEXUAL AND PERSONAL BEHAVIOUR:

(a)    Did the parties have sexual relations? If not, why not?

(b)    Did they maintain an attitude of fidelity to each other?

(c)    What were their feelings toward each other?

(d)    Did they communicate on a personal level?

(e)    Did they eat their meals together?

(f)      What, if anything, did they do to assist each other with problems or during illness?

(g)     Did they buy gifts for each other on special occasions?

(3)         SERVICES:

What was the conduct and habit of the parties in relation to:

(a)    Preparation of meals,

(b)    Washing and mending clothes,

(c)    Shopping,

(d)    Household maintenance,

(e)    Any other domestic services?

(4)         SOCIAL:

(a)    Did they participate together or separately in neighbourhood and community activities?

(b)    What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)         SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)         SUPPORT (ECONOMIC):

(a)    What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b)    What were the arrangements concerning the acquisition and ownership of property?

(c)    Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)         CHILDREN:

What was the attitude and conduct of the parties concerning children?”

         Pennington v. Pennington, 2022 ONSC 1631 (CanLII) at 23