Month: April 2019

““Custody” is not defined in Ontario legislation, though its meaning in family law is generally understood.  It consists of a bundle of rights and obligations, called “incidents” in sections 20 and 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.  Family law cases often deal with the allocation of rights of custody.  Those rights include the right to physical care and control of the child, to control the child’s place of residence, to discipline the child, to make decisions about the child’s education, to raise the child in a particular religion or no religion, to make decisions about medical care and treatment.  The incidents of custody can be dealt with all together or separately, according to section 21, and today it is common for parents who have separated to agree, and for courts to order, that some incidents of custody are jointly vested in the parents and some belong to one parent exclusively.  If a custodial right is joint, it may be exercised by any one of the persons who has it…

…

Historically the Crown, exercising the authority of parens patriae through the Court of Chancery in England and Upper Canada and later the consolidated superior court of Ontario, had the sole authority to transfer custodial rights in respect of a child.  Gradually over the last 200 years, statutes were passed dealing with court orders for custody, guardianship and wardship of children, but it was only in 1978 that legislative recognition of private contractual arrangements for custody first occurred in Ontario, in the Family Law Reform Act, 1978, S.O. 1978, c. 2.

The agreement entered into in this case is ineffective under the law to confer joint custodial rights over Valerie on the applicant.  The only instruments (other than court orders) recognized by Ontario law as conferring custodial rights over a child are marriage contracts, cohabitation agreements and separation agreements (see section 20 (7) above and Family Law Act, R.S.O. 1990, c. F.3, as amended, sections 52–54), wills (see Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, section 61) and temporary care and special needs agreements with a children’s aid society (see Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, Part II).”

Chou v. Region District School Board, 2005 CanLII 11195 (ON SC) at 21-23

“To award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests.”

Zafar v. Saiyid, 2018 ONCA 352 (CanLII) at 14

“The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, is the same as the test for an interlocutory injunction established by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to consider the following three factors:

(1)    a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2)    it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3)    an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

These three factors are not watertight compartments: the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); see also Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 (Weiler J.A., in chambers), at paras. 14-15; BTR Global, at para. 16.”

H.E. v. M.M., 2015 ONCA 244 (CanLII) at 2-3

“As explained by this court in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), lawyers who represent themselves in a lawsuit are entitled to costs. Self-represented litigants, however,

be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. … Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.”

Pirani v. Esmali, 2014 ONCA 279 (CanLII) at 6

“In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.”

Decaen v. Decaen, 2013 ONCA 218 (CanLII) at 42

“The parties drew my attention to a number of cases which have interpreted the meaning of ordinary occupation [of the matrimonial home].  In Ledrew v. Ledrew, [1993] O.J. No. 596 (C.J.), Smith, J. explained that,

[t]he ordinary occupation which is required of a home in order to qualify as a matrimonial home is that it be occupied by the parties as a family residence.  This requires that a significant part of the spouses’ time together be spent in and around the home and that the occupation of the home is not merely occasional or casual.

Based on this interpretation, Smith, J. found that the property in dispute, a cottage inherited by the wife during the marriage, did not constitute a matrimonial home due to lack of ordinary occupation.  At the time of separation, only the wife and children used the cottage, with the husband attending one family function and performing some maintenance work.  In the five years preceding and at the time of the separation, the parties spent no time together at the cottage whatsoever.

This interpretation has generally been followed in the case law.  It was applied recently in Gauthier v. Gauthier, [2011] O.J. No. 3764 (S.C.) at paras. 188-189.  In that case Bellegham, J. quoted directly from Ledrew in finding that there was no ordinary occupation of the cottage property in dispute because the parties did not treat it like a family residence nor did they spend a significant part of their time together there at the time of separation.  The husband only attended the cottage three or four times a year and performed minor work on it.

However, the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation: see LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141 (S.C) at para. 78.  In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 16, Perkins, J. noted that “to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre.”  In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon, J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.

Where usage is minimal or sporadic, the courts have focused on the intent of the parties.  In LeCouteur, H.A. Vogelsang, J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family’s “clear intent and purpose was to live there as a family.”  In Durakovic v. Durakovic, [2008] O.J. No. 3537 (S.C.) at paras. 123-127, the parties owned several homes around the world and led a nomadic lifestyle, staying at the property in dispute sometimes together and sometimes individually.  In finding certain property to be a matrimonial home, M.A.C. Scott, J. examined the express intention of the parties.  In addition, Scott, J. considered how property was maintained.

It should be noted, however, that future intent does not factor into the analysis: see Da Costa v. Da Costa (1990), 1990 CanLII 8096 (ON SC), 29 R.F.L. (3d) 422 (H.C.) at para. 49; Baudanza v. Nicoletti, [2011] O.J. No. 457 (S.C.) at para. 19.  Section 18(1) requires a determination of ordinary occupation at the time of separation; usage and intention post-separation is irrelevant.”

Oliver v. Oliver, 2012 ONSC 718 (CanLII) at 45-49

“The general principle is that an order granting a stay is final, but an order refusing one is interlocutory.”

McClintock v. Karam, 2017 ONCA 277 (CanLII) at 1

“As already mentioned, the [Spousal Support Advisory] Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support. In my view, the motion judge erred in departing from the Guidelines for the reasons he did: namely, the good luck associated with the husband’s early pension pay-out opportunity (at para. 140) and his finding that the wife was “mismanaging her affairs” (at para.150).

In the face of a very strong compensatory basis for entitlement to support, as well as an income increase arising from the very same job that the husband occupied throughout the 23-year-long traditional marriage, there was simply no reason to conclude that “the underlying assumptions of the SSAGs [were now] less helpful” (para.151).”

Slongo v. Slongo, 2017 ONCA 272 (CanLII) at 105-106

“In my view, it is equally appropriate to take [notional disposition] such costs into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as deduction of a liability: the result is the same. While these costs are not liabilities in the balance sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves.”

Sengmuller v. Sengmuller, 1994 CanLII 8711 (ON CA) per McKinlay J.A.

“Civil contempt of court is a quasi-criminal proceeding. The following elements must be proven beyond a reasonable doubt:

1)   The order that was breached must state clearly and unequivocally what should and should not be done.

2)   The party who disobeys the order must do so deliberately and wilfully.

3)   The breach of the order must be proven beyond a reasonable doubt.

See Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at paras. 26-27.”

Vigneault v. Massey, 2014 ONCA 2144 (CanLII) at 11