“The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.”
Month: January 2019
January 30 – Imputing Income
“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to beintentionally under-employed or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CanLII 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (Ont. C.A.).
The court in Drygala v. Paulisets out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.
The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See Homsi v. Zaya, 2009 ONCA 322 (CanLII), 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 CarswellOnt 2068 (Ont. C.A.). However, persistence in unremunerative employment may entitle the court to impute income. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. See DePace v. Michienzi, 2000 CanLII 22560 (ON SC), 2000 CanLII 22560, 5 R.F.L. (5th) 40, [2000] O.J. No. 453, 2000 CarswellOnt 425 (Ont. Fam. Ct.).”
January 28 – Loco Parentis
“I do not agree with the reasoning in Carignan. As noted above, the words “in the place of a parent” must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court. Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. The interpretation of the provisions of the Divorce Act relating to “child[ren] of the marriage” should be “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: see Interpretation Act, R.S.C., 1985, c. I-21, s. 12. The reasoning in Carignan ignores one of the fundamental objectives of the Divorce Act as it relates to children. The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.
What, therefore, is the proper time period for determining whether a person stands in the place of a parent? The term “at the material time” has been interpreted with reference to the parental status to mean “the time of the commencement of the proceedings” (see Hock v. Hock, [1971] 4 W.W.R. 262 (B.C.C.A.), at p. 273); “the time of the hearing” (see Harrington v. Harrington (1981), 1981 CanLII 1762 (ON CA), 33 O.R. (2d) 150 (C.A.), at p. 159); and has also been held to mean “whatever date is appropriate”.
InCarignan, the Manitoba Court of Appeal held that the words “at the material time” have no reference to when the parental status occurred or existed, but only to whether the step-parent is “in the place of a parent” when the child is under 16 or over 16 but in a dependant state. Huband J.A. noted that there is no reference to material time in s. 2(2) where the expression “in the place of a parent” is used. He held that a proper interpretation of the two sections is that the court can make an order for maintenance against a person standing in the place of a parent only if the child is under 16, or over 16 and in a dependant state. The court said, at p. 72:
If one looks back at the definition section, eliminating unnecessary words, it states that the child of the marriage means a child of two spouses who “at the material time” is under the age of sixteen years (forgetting for the moment clause (b) of the definition). The words “at the material time” refer only to the question of the age of the child. Those words have no reference to the child’s status “in loco parentis”. Reference to the relationship in loco parentis follows in a separate definition provision which indicates that a child of two spouses includes a child in loco parentis. Reading the two sections together, the court has jurisdiction to make an order of maintenance in favour of a child in loco parentis but only if the child is under the age of 16 “at the material time”.
Similarly, in Miller v. Miller (1988), 13 R.F.L. (3d) 80, at p. 83, Scott L.J.S.C. of the Ontario Supreme Court put the matter in these terms:
The “at the material time” phrase refers to age or condition; the loco parentis subsection is in the present tense in both languages — and I fail to see how the at the material time concept can be imported from one subsection into the other.
It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship under s. 2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit. See Julien D. Payne, Payne on Divorce(4th ed. 1996), at p. 148. If the “material time” was to be interpreted as in Hock, supra, it would be difficult to find a parental relationship in situations where the step-parent has little contact with the child between the separation and the divorce proceedings. This is inconsistent with the purpose of the Divorce Act.”
Chartier v. Chartier, [1999] 1 SCR 242, 1999 CanLII 707 (SCC) at 32-36
January 25 – Genesis of the Constructive Trust Remedy
“The distinction between a share in ownership and a share in property value through an equalizing transfer of money is more than an exercise in judicial formalism. This distinction not only follows the two-step structure of theFamily Law Act, 1986but reflects conceptual and practical differences between ownership and equalization. Ownership encompasses far more than a mere share in the value of property. It includes additional legal rights, elements of control and increased legal responsibilities. In addition, it may well provide psychological benefits derived from pride of ownership. Where the property at issue is one to which only one spouse has contributed, it is appropriate that the other spouse receive only an equalizing transfer of money. But where both spouses have contributed to the acquisition or maintenance of the property, the spouse who does not hold legal title should be able to claim an interest in that property by way of a constructive trust and realize the benefits that ownership may provide. The imposition of a constructive trust recognizes that the titled spouse is holding property that has been acquired, at least in part, through the money or effort of another. The non-titled spouse’s constructive trust interest in this property is distinct from the right to an equalizing share of property value that is derived not from an independent property right but from the status as a married person.”
Rawluk v. Rawluk, [1990] 1 SCR 70, 1990 CanLII 152 (SCC) per Cory J.
January 24 – Parenting Coordination
“Parenting coordination is one of the most recent dispute resolution models to enter the Ontario family law realm, although it has been known and used for many years in other jurisdictions. Parenting Coordination is used exclusively to deal with parenting issues, and is only possible once a final parenting agreement or court order is in place. To confirm the PC’s authority to work with the parents outside the adversarial process, to obtain information and to make recommendations and decisions as authorized by a parenting agreement, the parents’ consent to defer to parenting coordination is normally incorporated into a formal court order. One of the main functions of the PC is to help parents implement the parenting terms of their agreement/court order.
This resolution model includes two components: the non-decision making component and the decision-making component. During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties about child development matters and the impact of parenting conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.
During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard. During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and is in the children’s best interest to do so. Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.”
January 23 – Summary Judgment
“On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)
In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”
January 22 – Assuming Jurisdiction and Ordinary Residence
“Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Bredain the context of a tort case. The Supreme Court in Van Bredawas clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:
In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:
(a) Similarity of the connecting factor with the recognized connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.
While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.”
January 18 – Tort of Intrusion Upon Seclusion
“I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”
January 10 – Determining Title Comes First
“TheFLAis a detailed statutory scheme for resolving issues arising out of marital breakdown. Section 10(1) provides for the determination of questions of title between married spouses. This includes consideration of any beneficial interests in property arising pursuant to the imposition of a remedial constructive trust:
A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5.
In Rawluk v. Rawluk, [1990] 1 S.C.R. 70, Cory J., writing for the majority of the Supreme Court, relied on s. 10(1) of the Family Law Act, 1986(which is identical to s. 10(1) of the current Act) to confirm that the statutory scheme for the equalization of spouses’ property on marriage breakdown does not completely supersede the remedial constructive trust. Before property can be equalized under the Family Law Act, a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.”
January 7 – Material Change & Spousal Support
“Section 17(1) of the Divorce Act, R.S.C., 1985, C.3, as amended, permits the court to vary a support order where there has been a change in circumstances. The jurisprudence is clear that courts are reluctant to interfere with support orders and will not do so unless the reasons disclose an error in principle or a significant misapprehension of the evidence, or unless the order is clearly wrong. Because of the fact-based and discretionary nature of such an order, judges are to be given considerable deference by appellate courts when such decisions are reviewed. Their discretion is to be exercised, however, in accordance with the four objectives set out in s. 17(7) – which are designed to reflect the principle that the economic consequences of marriage and of separation and divorce are to be equitably shared between the former spouses – namely that the variation order should:
a) recognize any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;
b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-11.
Moreover, the change in circumstances must be material and not trivial or insignificant: Hickey, at paras. 14 and 20-22; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670. In Willick, at p. 688, Sopinka J. said:
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. [Emphasis added.]”