Month: October 2018

“There is a high hurdle to overcome for a claim to succeed under s. 5(6) on the basis of marital infidelity. I concur with the view of Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 (CanLII), 55 R.F.L. (7th) 117, at paras. 46 and 49:

All of the provisions of section 5(6) are directly linked to the impact on one or both spouses’ debts, liabilities, or property. A general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient. … It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else.

…

However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. … Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.”

Frick v. Frick, 2016 ONCA 799 at 32

“In Vohra v. Vohra, 2009 ONCJ 135 (CanLII), [2009] O.J. No. 1446, Justice Stanley Sherr stated that a flexible approach should be adopted to determine what is a full-time program of education.  The flexible approach allows the determination to be made having regard to the child’s aptitudes and abilities:

“Most courts have followed a flexible approach to the determination of what constitutes a full-time program of education.  A full-time program does not necessarily mean full-time attendance at school.  A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program’s purposes and objectives.  See Wilson v. Wilson, 2002 CanLII 2824 (ON SC), 2002 CanLII 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (Ont. S.C.); Lall v. Lall, 2009 ONCJ 96 (CanLII), [2009] O.J. No. 1273, 2009 CarswellOnt 1629 (Ont. C.J.); and Kapounek v. Brown, 2000 CanLII 20579 (ON SC), 2000 CanLII 20579, 7 R.F.L. (5th) 144, [2000] O.J. No. 1301, 2000 CarswellOnt 1406 (Ont. Fam. Ct.) (where the child received support while attending a two year course over three years). The court must examine the individual circumstances of each case when making this determination.”

The flexible approach, where the Court examines the question of full time enrolment in the context of the child’s ability and aptitude, is now followed by most courts.  In Wilson v. Wilson,2002 CanLII 2824 (ON SC), 2002 CanLII 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (Ont. S.C.)  Justice Heeney concluded that section 31 of the Family Law Act is intended to ensure that parents support their children while they are fully engaged in their education, and should be strictly construed for the benefit of children.”

Kase v. Bazinet,2011 ONCJ 718 (CanLII) at 42-43

“In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.  This means a change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.  The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made.  In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents.  The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way.  There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered.  The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa(1990), 1990 CanLII 3966 (ON SC), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110‑11is apt:

It is established beyond dispute that a dependent child is entitled to look to both parents for support.  It is also established beyond dispute that each parent has an obligation to provide for the support of the child.  The amount of the support to be provided is the amount that will meet the needs of that particular child.  The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support.  I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents.  If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease.  [Emphasis added.]”

Willick v. Willick, [1994] 3 SCR 670, 1994 CanLII 28 (SCC)

“I find no fault with the trial judge’s refusal to admit the report on the basis of (1) its frailties, and (2) the fact that its value – to impeach the report of the court-appointed expert – remained available to the appellant through cross-examination and, ultimately, argument.   I strongly support the view expressed by Justice Wein in Mayfield v. Mayfield(2001), 2001 CanLII 28213 (ON SC), 18 R.F.L. (5th) 328, at para. 44 (Ont. S.C.), that

in most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique. A social work critique may of course be done to assist counsel in formulating questions for cross-examination of the assessor or to assist counsel in developing an argument concerning the weight to be attached to an assessment report but it will rarely be “necessary” to introduce the critique as original evidence or to call the critique as a witness. The expense in most cases could be better spared or applied to an independent assessment.”

Sordi v. Sordi, 2011 ONCA 665 (CanLII) at 14

“As the court held in Lefebvre v. Gowan, 2014 ONSC 6221, [2014] W.D.F.L. 4722, at para. 28, the fact that grandparents help a separated child pay the expenses of the grandchildren does not in the ordinary course absolve the other parent from financial responsibility.”

Squires v. Crouch, 2016 ONCA 774 at 12

“In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49.”

Chiaramonte v. Chiaramonte, 2013 ONCA 641 at 31

“In summary, as a matter of statutory interpretation, the Divorce Act mandates that, in decisions of custody and access, the sole consideration be the best interests of the child.  The focus must remain at all times on the child, not the needs or interests of the parents, and parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child.

The custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well‑being of the child.  Parental authority rests with the custodial parent, not for his or her own benefit, but in order to enable that parent to discharge effectively the obligations and responsibilities owed to the child.

As set out in the Act, maximum contact between the child and the non‑custodial parent is a worthwhile goal which should be pursued to the extent that it is in the best interests of the child.  Generous and unrestricted access, which is the norm, should be favoured except when such access would not be in the best interests of the child.  However, ongoing conflict between parents which adversely affects the child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce.

The best interests of the child must be approached from a child‑centred perspective.  It is not simply the right to be free of significant harm.  It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.

Where the question of restrictions on access arises, the best interests of the child must be determined by considering the “condition, means, needs and other circumstances of the child” as required by the Act.  The totality of these circumstances must be considered.  Nothing in the Act suggests that harm should be the controlling factor.  To adopt the harm standard would be to invert the focus of the best interests test and place the risk of error on the child, contrary to the objectives of the Act.

Expert evidence, while helpful in some cases, is not routinely required to establish the best interests of the child.  That determination is normally possible from the evidence of the parties themselves and, in some cases, the testimony of the children involved.

Freedom of religion and expression are fundamental values protected by the Charter.  However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter.  The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access.  While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”

Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé.

“By operation of s. 5 of the Family Law Act, the parties to the marriage share equally in any increase in the value of family property between marriage and the date of separation.  Section 5 provides as follows:

5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

In the jurisprudence that has developed under this section, the difficulty in valuing assets and liabilities, particularly contingent liabilities, is often noted.  What is clear, however, is that contingent liabilities are to be taken into account as long as they are reasonably foreseeable. See Leslie v. Leslie (1987), 9 R.F.L. (3d) 82 (Ont. H.C.); Nicol v. Nicol (1989), 21 R.F.L. (3d) 236 (Ont. H.C.); Crutchfield v. Crutchfield(1987), 10 R.F.L. (3d) 247 (Ont. H.C.); and Drysdale v. Drysdale(1994), 1994 CanLII 7453 (ON SC), 9 R.F.L. (4th) 20 (Ont. U.F.C.J.).

In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date: Johnston v. Johnston, [1998] O.J. No. 5495 (Gen. Div.), at para. 59, aff’d on other grounds 2000 CanLII 14718 (ON CA), 2000 CanLII 14718 (ON C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 234.  In Drysdale, at paras. 14-17, Beckett J. noted that where courts have found no or a very low risk that a guarantee would be called at the valuation date, the value of the contingent liability has been determined to be nil.  However, in Drysdaleit was found that there was a real possibility that the guarantee would be called upon, though the amount could not be predicted with any certainty.  Finding it unrealistic to value the liability at either zero or the full amount of $200,000, Beckett J. valued the liability at 50 percent of the amount in question: see also Salamon v. Salamon, [1997] O.J. No. 852 (S.C.J.).  This approach was approved by this Court in Cade v. Rotstein(2002), 2004 CanLII 24269 (ON CA), 181 O.A.C. 226 (C.A.).”

Greenglass v. Greenglass, 2010 ONCA 675 (CanLII) at 25-27.

“In Scalia v. Scalia, 2015 ONCA 492 (CanLII)  the Ontario Court of Appeal confirmed that the legal test for bad faith in the family law context as set out by Perkins J.in S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.).

a.      In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.

b.      A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith.

c.      The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent.

d.      At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

e.      In short, the essential components are intention to inflict harm or deceive.”

Benzeroual v. Issa and Farag, 2017 ONSC 6225 at 20.

“Retroactive spousal support can be ordered prior to the date first claimed in legal proceedings where there is good reason for the delay: see Philip v. Philip, 2006 CarswellOnt 1591, [2006] W.D.F.L. 2242 (S.C.J.), at para. 50.”

Ruffolo v. David, 2012 ONCA 698 (CanLII) at 20