Month: September 2019

“The Applicant’s request raises two arguments for an annulment – one being that the marriage was not consummated, and the second being that the Respondent only married her for immigration purposes. Both of these arguments, if successful, would result in the marriage being voidable. In other words, the marriage is treated in law as a valid and subsisting marriage unless and until it is annulled by a Court.

Based on the evidence before me, neither of the above arguments allow an annulment to be granted in this matter.

Historically, annulments based on non-consummation have required evidence of permanent physical impotency. This has been expanded to include evidence of psychological factors that effectively create a permanent psychological impotency. Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient.

Based on the evidence before me, I do not find that a permanent impotency exists that would allow an annulment based on non-consummation. Rather, the evidence supports a finding of wilful refusal on the part of the Respondent to consummate the marriage. This is not sufficient.

With respect to the immigration issue, the Ontario Court of Appeal has held in its decision in Iantsis (Papatheodorou) v. Papatheodorou⁵that immigration fraud cannot be relied upon to grant an annulment.”

Doiron v. Lawson, 2018 ONSC 5744 (CanLII) at 8-12

“The daughters are not speaking to their father, and the mother seeks a contribution for section 7 expenses. Therefore, the mother must provide sufficient information about the means, needs and other circumstances of the adult daughters to allow the court to determine the contribution from the children, and the reasonableness of the expenses.

I consider the factors set out by Justice Chappel in Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII), at para. 157 as a useful guide to relevant factors in the context of adult children’s section 7 expense payments:

The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors [internal citations omitted]…:

1.   Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

2.   Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3.   The ability of the child to contribute to their own support through part time employment.

4.   Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

5.   In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

6.  The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.

7.   The age, qualifications and experience of the child.

8.   The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

9.  Whether the child is performing well in the chosen course of studies.

10.  What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.  In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

11.  The means, needs and other circumstances of the parents and the child.

12.  The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.  If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.”

Almeida v. Malek-Gilani, 2018 ONSC 5699 (CanLII) at 34-35

“Section 14 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that “[o]n taking effect, a divorce granted under this Act dissolves the marriage of the spouses.”

In the ordinary course, the effect of s. 12(1) of the Divorce Act is that a divorce takes effect on the 31st day following the judgment granting the divorce. In the intervening period, the parties are still married. If one of the parties dies during that period, the judgment granting the divorce cannot take effect: see Re Kindl (1982), 1982 CanLII 2049 (ON SC), 39 O.R. (2d) 219 (S.C.), at p. 224; L. (M.) v. C. (J.-P.) (1997), 1997 CanLII 10775 (QC CA), 145 D.L.R. (4th) 739 (Que. C.A.), at p. 740.

In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage.”

White v. White,2015 ONCA 647 (CanLII) at 10-12

“Parents involved in high conflict custody and access disputes typically fail to see the harm that they cause to their children, often believing that they are fighting for the best interests of the children. The evidence is clear that intense conflict causes significant harm to children. Parents are often unaware of this important fact. For this reason, I will quote at length from Jackson v. Jackson, (2008) 2008 CanLII 3222 (ON SC), 50 R.F.L. (6^th) 149 (Ont. Sup. Ct.) at paras. 7 and 20. In Jackson, the Court reviews social science evidence detailing the toxicology of conflict.  In particular, the Court refers to Glenn A. Gilmour’s paper, ‘High-Conflict Separation and Divorce: Options for Consideration,’ prepared for the Department of Justice, Canada:

In this paper, Mr. Gilmour summarized the factors which contribute to impasse and conflict. These factors were identified by Johnston, Campbell and Tall (1985) using data on 80 divorcing families with 100 children, to develop a typology of factors contributing to impasse in divorce. Mr. Gilmour’s summary of these factors is worth quoting in full:

At the external level are unholy alliances and coalitions -the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse’s parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other. Interactional elements include the legacy of a destructive marital relationship, in which each spouse while married had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the ex-spouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other; a need to ward off of helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents’ guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them…

Mr. Gilmour concludes, based on his review of numerous studies on parental conflict, that: “the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.” His conclusion mirrors that of others in the field. In High Conflict Family Court Cases: Working for the Child’s Best Interests, published in Australian and New Zealand Journal of Family Therapy, v. 24, no. 2 Jun 2003 at pp. 95-101, Read, L. concludes: “High levels of parental conflict in separated families can have a devastating impact on children and their development.”

Parham v. Jiang, 2013 ONSC 6003 (CanLII) at 30

“The interpretation given to sections 15.2(4) and 15.2(6) of the Divorce Act in the leading cases of Moge v. Moge and Bracklow v Bracklow recognize that, absent the situation where one spouse is irreparably economically disadvantaged by the marriage or its breakdown, or there is a legitimate need for continuing support that justice requires be addressed by a spouse with the means to do so; the basis for support entitlement can evolve and, that ultimately, spousal support may end after a reasonable time, even in a long marriage in which the parties were at one point financially interdependent.

Ongoing assertions of need and an ability to pay do not automatically entitle a spouse to indefinite support. Spouses have an obligation to become self-sufficient and to make prudent financial decisions.  Self-sufficiency does not mean future parity of income.

Garnet v Garnet, 2016 ONSC 5922 (CanLII) at 98-99

“Both parties rely on the decision of Townshend v. Townshend, 2012 ONCA 868 (CanLII), where a $25,000 gift to the husband was received and deposited into a joint account in 2001, and subsequently transferred into another joint account in September 2004.  The parties separated about 9 months later in May of 2005, and at the time there was $31,000 in that second joint account.  The tracing for the first 3 years was conceded, as the wife acknowledged that the $25,000 gift went into the second joint account.  So the sole issue was whether the $25,000 could be traced to the $31,000 over a period of 9 months.  The wife submitted that the husband could not prove it was the same money because of a lack of disclosure.  The Court of Appeal characterized that as an “overly formulistic approach” and held that a “compelling inference arises” despite the lack of evidence, and allowed the husband a $12,500 exclusion.

The usual approach for tracing monies in investment accounts has been referred to in the case law as the “pro rata method”: see Goodyer v. Goodyer, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (Ont. Gen. Div.) at paragraphs 69 and 70, and Wolfe v. Wolfe, [2003] O.J. No. 3386 (Ont. S.C.J.) at paragraph 53.  What this means is that a calculation is made of the ratio of exempt inheritance funds to the non-exempt funds that have been deposited into the account and that ratio is applied to the funds remaining in the account on the date of separation (Wolfe at paragraph 54).  As suggested in Townshend, this approach is subject to being relaxed when common sense and a reasonable balance of probabilities calls for a different result: see Henderson v. Casson, 2014 ONSC 720 (CanLII), 2014 O.J. No. 519 (Ont. S.C.J.) at paragraphs 90 and 91.

After the inheritance or the part of it that remains in the account has been traced, the amount of the exclusion is then to be halved when dealing with a joint account.  The reason is that one half of the gift or inheritance loses its exclusionary character as it is presumed to be gifted to the other spouse.  The halving after tracing was the approach used in both Townshend and Goodyer.  While there are exceptions to that result (for example if the joint account was merely used as a conduit: see Barrett v. Barrett, [2014] O.J. No. 540 (Ont. S.C.J.)), it is accepted by the wife in this case.  Her position is that she is only seeking one half of the total inheritance as an exclusion, or $23,478.60.”

Finch v. Finch, 2018 ONSC 5575 (CanLII) at 35-37

“There is no need, in my view, to rely upon this court’s inherent parens patriae jurisdiction to craft an Order which will help promote a rehabilitated relationship between children and their parents.  The jurisdiction to order therapeutic counselling can be found in sections 24 (2) and 28 (1) (b) and (c) (vii) of the CLRA but caution must be exercised when considering the circumstances in which any such Order would be appropriate and, if so, to define the parameters of such third party involvement.

In summary then,

1.     The court may order reunification therapy.  That jurisdiction arises from the provisions of sections 24(2) and 28(1)(b) and (c) (viii) of the Children’s Law Reform Act.

2.    Such orders are to be made sparingly.

3.    There must be compelling evidence that the therapy will be beneficial.

4.   The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.

5.    Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6.    Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7.   Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.”

Testani v. Haughton, 2016 ONSC 5827 (CanLII) at 17-18

“The requirement that a judge give reasons for decision is clear. It is an inherent aspect of the discharge of a judge’s responsibilities. See R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 162 C.C.C. (3d) 298. As Binnie J. noted at para. 24 of Sheppard:

[T]he requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The need for reasons in the family law context was recently affirmed by this court in Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112, [2003] O.J. No. 67 (C.A.). At para. 27 of Young, Laskin J.A., writing for the court, states:

The desirability of reasoned reasons in a criminal case rests on three main rationales: public confidence in the administration of the justice system, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful. These three rationales also apply to a family law case and are relevant in this case.

I would reiterate the recent comments of this court in R. v. Tzarfin, 2005 CanLII 30045 (ON CA), [2005] O.J. No. 3531, 201 O.A.C. 183 (C.A.), at para. 9:

[A]ppellate courts must not place an impossible burden on busy trial courts. An accused is entitled to adequate reasons, not perfect reasons.

This sentiment applies equally to the reasons of motion judges, including those deciding family law matters. Nonetheless, the appellant has been ordered to pay a substantial sum of money for a substantial period of time and he is entitled to know the basis for such an order.

Bodnar v. Blackman, 2006 CanLII 31803 (ON CA) at 10, 11 & 22

“If the legislative scheme is no longer available to the appellants because they long ago ceased being children, I do not think that they can assert a right to some equitable remedy to obtain, in effect, what might have been obtained had the legal remedies been pursued in a timely fashion. La Forest J. dealt with that issue in Frame v. Smith at pp. 114-15 S.C.R.:

The Legislature created the rights of custody and access and, as we saw, provided a whole array of remedies for enforcing them, from directions for supervising access, to restraining orders against interference, to apprehending the child, if necessary by permitting entries into premises and searches by the police or the sheriff, to fines and imprisonment. Why the legislature should be thought to have intended enforcement by an action for breach of a fiduciary obligation when there is a failure to comply with an access order, when an intention to permit a tortious action will not be implied, I fail to understand. All the more so when the Legislature has taken pains to abolish all non-statutory actions that had any obvious relevance to the matter. Indeed there are in my view stronger reasons to doubt that the Legislature would have contemplated recourse to this action. It is extremely ill- defined and it would scarcely be one that would immediately leap to mind.

In this respect, I agree with the motions judge when she said the following [at p. 295 O.R.]:

Parents have an obligation to support their dependent children. There are serious consequences for those who default. They can lose their drivers’ license. They can lose their passport. They can go to jail. The stringent enforcement provisions reflect the moral outrage of a society that labels them “deadbeats”. But the laws are meant to provide for children. They are meant to ensure that children receive support for their day-to-day needs while they are dependent. Child support legislation was not intended to operate as a weapon in the hands of grown-ups who sue their parents for perceived deficiencies in their upbringing. That is why the Supreme Court of Canada [in Frame v. Smith] refused to allow persons to sue for damages for breach of a family law statutory obligation. The statutory scheme provides the entire remedy. If the legislature had intended to extend the remedy to damages, it would have said so.”

Louie v. Lastman (No.1), 2002 CanLII 45060 (ON CA) at 20-21

“A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other.  Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute.  In my opinion, the plain language of s. 4 is consistent with such an interpretation.  Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”.  Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000.  I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.

I add one final comment.  As noted above, Abella J.A. was concerned with the differential treatment of children.  In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines.  The plain wording of s. 4(b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income.  They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000.  Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded.  In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent.  However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments.  Section 26.1(2) of the Act states that “[t]he guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added).  While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs.  In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.  I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support.  But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.  Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4.  In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support.  This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”. 

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-41