Month: November 2019

Rule 7(5) of the Family Law Rules states as follows:

The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

I agree with the applicant that, at this time, [the child’s great-aunt] Ms. Dennis is not a parent to the child and has never had care and control of the child; and consequently, she does not have standing to be added as a party pursuant to rule 7(4) of the Family Law Rules unless this Court orders otherwise.

The central question is whether or not I should exercise my discretion to add Ms. Dennis as a party in these proceedings pursuant to Rule 7(5) Family Law Rules.

The discretion to exercise is to be used sparingly and only when necessary for the just determination of litigation as stated by Justice McSorley in Breen v MacArthur, 2016 ONSC 2454 (CanLII) at para. 5 of the decision, Justice McSorley stated:

Rule 7(5) states that the court may order that any person who should be a party shall be added as a party and may give directions for service on that person. This rule gives the court discretion with respect to whether a person is added as a party. The rule itself provides no criteria or direction as to how the court should exercise its discretion. There can be no doubt that the court has the discretion to add persons as parties to a case. However, that discretion should be used sparingly and only when necessary for the just determination of the litigation.

In a child protection case, Justice Campbell in Children’s Aid Society of London and Middlesex v. S. H., 2002 CanLII 46218 (ON SC), [2002] O. J. No. 4491 set out the following principles to be considered before adding a party in a child protection proceeding:

1. 1. 1. whether the addition of the party is in the best interests of the child,

1. 1. 2. whether the addition of the party will delay or prolong proceedings and duly,

1. 1. 3. whether the addition of the parties is necessary to determine the issues, and

1. 1. 4. whether the additional party is capable of putting forward a plan that is in the best interests of the child.

The criteria set out in the Children’s Aid Society of London and Middlesex has been applied in non-child protection proceedings as in Santilli v. Piselli, 2010 ONSC 2874 (CanLII), 87 R.F.L. (6th) 135 and Worrall v. Worrall 2012 ONSC 4388 (CanLII). I agree with the analysis of Justice Mitrow in the Worrall decision where he stated at para. 32 the following:

32 By way of summary, the following criteria, which are not exhaustive, can be applied to determine when a person should be added as a party pursuant to sub-rule 7(5) of the Family Law Rules:

a) is the person a “necessary” party to determine all issues in the case;

b) in determining “necessity”, it will be unlikely that necessity can be established if the proposed party has no “legal interest” in the case, meaning that no order can be made for or against, the proposed party;

c) in a circumstance or a proposed party has no legal interest in the case, the court may exercise his discretion to add the proposed party in situations (in this list is not meant to be exhaustive) where there are unusual facts, there is evidence of some collusion between the parties in the matrimonial proceeding or the case is egregious. The exercise of the discretion to had parties in the circumstances should be exercised very sparingly.”

Reeves v. Cooper, 2018 ONSC 7137 (CanLII) at 23-28

“The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following 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: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 (CanLII) [In Chambers], at para. 1.

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.); Longley v. Canada (Attorney General), 2007 ONCA 149 (CanLII), 223 O.A.C. 102 [In Chambers], at paras. 14-15.”

Zafar v. Saiyid, 2017 ONCA 919 (CanLII) at 17-18

 “In Plumley v. Plumley, 1999 CanLII 13990, 1999 CarswellOnt. 3503 (S.C.) the court discussed factors relating to interim mobility at para. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

Dealing with interim mobility in this case can be analogized to the interim custody case of Currie v. Maudsley, 2011 ONSC 4214 (CanLII). There, on the issue of status quo, the court stated at paras. 15-17:

The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change in custody is necessary to meet the children’s best interests and this would include a situation where there is evidence that maintaining an existing status quo will be harmful to the children.

In Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970, V. Mackinnon J. stated that the “status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure (see para. 15).

Some of the reasons why the interim status quo should be preserved were succinctly stated by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 as follows in paras. 1 and 2:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. … By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. [Emphasis in original. Citations omitted].

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.”

Hutchings-Valentim v. Valentim, 2018 ONSC 7110 (CanLII) at 20-21

“To summarize, it is important to know the following about the court’s jurisdiction to make refraining orders:

a) A refraining order can only be made with respect to a First Notice. It cannot be made in response to a Final Notice.

b) The refraining order must be obtained within the 30-day period referred to in the First Notice. This time period cannot be extended by the Director or the court.

c)  If the 30-day period referred to in the First Notice expires on a day when court offices are closed, the last day that the court can make a refraining order is the last day on which court offices are open before the 30-day period expires.

d)  If the payor does not obtain a court date for a motion to change within 20 days of obtaining the refraining order, the refraining order is automatically terminated. If this happens, no further notice to the payor is required for the Director to direct the Registrar of Motor Vehicles to suspend the payor’s driver’s licence.

e)  The refraining order also terminates on the earliest of the dates set out in subsection 35(19) of the [Family Arrears and Support Enforcement] If this happens, no further notice to the payor is required for the Director to direct the Registrar of Motor Vehicles to suspend the payor’s driver’s licence.

f)  If the refraining order has not been automatically terminated due to the payor’s failure to obtain a date for a motion to change within 20 days, it may be extended, on motion to the court that made the order, for one further three to six month period, depending on the facts. The motion to extend the order must be heard before the order expires.

g) If the payor fails to comply with the payment terms of a refraining order, a payment agreement with the Director made in response to a First Notice, or the terms of a new support order made pursuant to a motion to change, the Director may send a Final Notice to the payor within 24 months of the date of the agreement or court orders. The court cannot make a further refraining order if this happens. The payor must either pay the arrears, bring the court order or agreement into good standing or enter into a payment agreement satisfactory to the Director.

h) If more than 24 months have elapsed from the making of any such agreement or court order, the Director is required to send the payor a First Notice – not a Final Notice. In this event, the payor does have the right to move for a refraining order.”

Farah v. Ontario (Director, Family Responsibility Office), 2018 ONCJ 829 (CanLII) at 36

“In this case, the father relies on his assertion that his RRSPs were equalized as part of the settlement effected by the consent order, as well as the fact that the RRSP withdrawal was a non-recurring event and was used to assist in the purchase of a home to argue that it should not be treated as income for child support purposes.

I would not accept these submissions. Subject to ss. 17-20 of the Guidelines, s. 16 provides that a spouse’s annual income for child support purposes is determined using the sources of income set out under the heading “Total income” on the T1 tax form. RRSP income is included as part of Total income on the T1 tax form. Accordingly, subject to ss. 17-20 of the Guidelines, RRSP income received in a particular year is presumptively part of a spouse’s income for child support purposes.

Section 17 of the Guidelines permits a court to depart from the income determination made under s. 16 where it is satisfied that would not be the fairest determination of income. In such a case, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable “in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”

To begin with, I am not persuaded that the father has demonstrated that treating his RRSP withdrawal as income “would not lead to the fairest determination of … income”.

In Stevens v. Boulerice, 1999 CanLII 14995 (ON SC), [1999] O.J. No. 1568, 49 R.F.L. (4th) 425 (S.C.), Aitken J. declined for two reasons to exclude RRSP withdrawals from income simply because the RRSP had been the subject of an equalization calculation.

First, she noted that s. 16 of the Guidelines requires that RRSP withdrawals be included as income for child support purposes. Further, Schedule III to the Guidelines, which provides some special rules for adjustments to income for child support purposes in certain cases, does not make any special provision for RRSP income.

Second, Aitken J. observed that the equalization was a matter between the parents while the issue before her was a question of child support. She could see no reason why an available source of income to fund child support should be excluded because of dealings between the parents. The child support was not being paid to increase the mother’s lifestyle.

I find this reasoning persuasive. The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.

Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father’s first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four bedroom house should not deprive his children of an available source of child support.

Finally, I am of the opinion, that some of the early cases relied on by the trial judge in P.(J.M.) v. K.(T.L.), at para. 161, which adopted the view that non-recurring withdrawals from RRSPs should essentially be automatically excluded from income for child support purposes, have been superseded by amendments to s. 17 and by subsequent case law such as Stevens v. Boulerice.”

Fraser v. Fraser, 2013 ONCA 715 (CanLII) at 96-105.

“The issue on this appeal is whether the Superior Court has jurisdiction under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(1) to vary or discharge child support arrears where the application is brought after children are no longer “children of the marriage”.

That issue turns on how we are to interpret D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231. D.B.S. holds that a court does not have jurisdiction to entertain an original application for child support under s. 15.1(1) of the Divorce Act if the children are no longer “children of the marriage”. Does that mean that a court has no jurisdiction to vary an existing order for child support under s. 17(1) where the application to vary is made after children are no longer “children of the marriage”?

D.B.S. did not directly consider the point at issue on this appeal, namely, whether the court has jurisdiction to entertain an application to vary a child support order after the children are no longer “children of the marriage”. That issue falls to be determined under s. 17(1) of the Divorce Act…

One of the four cases decided together with D.B.S., Henry v. Henry, involved an application for retroactive variation of a child support order. At the time the notice of motion to vary was filed, the eldest child was no longer a child of the marriage. The Supreme Court held, at para. 150, that as the Notice to Disclose/Notice of Motion had been served while that child still was a child of the marriage, there was jurisdiction to entertain the application. That might suggest that there would have been no jurisdiction had the proceedings not been initiated while the child was still a child of the marriage, but the court did not directly consider or decide that point. In some cases, including the case at bar, trial level judges have held that D.B.S. governs and declined to vary child support orders after the children are no longer “children of the marriage”: see Giroux v. Mueller, 2013 ONSC 246 (CanLII), [2013] O.J. No. 90; Durso v. Mascherin, 2013 ONSC 6522 (CanLII), [2013] O.J. No. 4803; Noseworthy v. Noseworthy (2011), 313 Nfld. & P.E.I.R. 1 (N.L.S.C.); Boomhour v. Huskinson (2008), 2008 CanLII 26261 (ON SC), 54 R.F.L. (6th) 297 (Ont. Sup. Ct.); Krivanek v. Krivanek (2008), 2008 CanLII 44732 (ON SC), 56 R.F.L. (6th) 390 (Ont. Sup. Ct.); Haavisto v. Haavisto, 2008 SKQB 446 (CanLII), 325 Sask. R. 82; Millar v. Millar, 2007 SKQB 25 (CanLII), 292 Sask. R. 316.

There is, however, a strong line of conflicting authority supporting the view that given the different wording and purpose of s. 17(1), the test for jurisdiction to vary differs from the test for jurisdiction to make an original order under s. 15.1(1).

I am more persuaded by this line of authority. The leading and most carefully reasoned decision is Buckingham v. Buckingham, 2013 ABQB 155 (CanLII), 554 A.R. 256, where Strekaf J. concluded that both the wording of the statute and the principles of child support favoured distinguishing D.B.S. and interpreting s. 17(1) to allow a court to vary a child support order even though the children are no longer children of the marriage. The reasoning in Buckingham has been followed in a number of Ontario trial level decisions under the Divorce Act: Timmers v. Timmers, 2016 ONSC 306; Charron v. Dumais, 2016 ONSC 7491 (CanLII), [2016] O.J. No. 6235; Lemay c. Longpré, 2014 ONCS 5107 (CanLII), 2014 ONSC 5107, 68 R.F.L. (7th) 365. Courts have also retained jurisdiction on the basis that the payor parent’s deliberate absence or deception prevented the recipient from applying for a variation while the child was still a “child of the marriage”: George v. Gayed, 2014 ONSC 5360 (CanLII), [2014] O.J. No. 4383; Simone v. Herres, 2011 ONSC 1788 (CanLII), [2011] O.J. No. 1626.

I note as well that Ontario cases decided under the Family Law Act, R.S.O. 1990, c. F.3  hold that the court has jurisdiction to vary child support orders after retroactively after the children cease to be dependants, frequently citing Buckingham in support: see Surighina v. Surighin, 2017 ONCJ 384 (CanLII), [2017] O.J. No. 3022; Smith v. McQuinn, 2016 ONSC 7997 (CanLII), [2016] O.J. No. 6600; Meyer v. Content, 2014 ONSC 6001 (CanLII), [2014] O.J. No. 4992; Catena v. Catena, 2015 ONSC 3186 (CanLII), 61 R.F.L. (7th) 463. While not determinative of the point at issue on this appeal, there would be an additional unfairness if parents in precisely the same situation were permitted to vary Family Law Act orders, but not orders under the Divorce Act.

To date, where retroactive variation is sought when the children are no longer entitled to support, the courts have seen fit to entertain the request in the following situations, summarized in Smith v. McQuinn, at para. 59:

In summary, the case law has created exceptions to the DBS analysis in the following circumstances:

a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act, 1985, c. 3 (2nd Supp.) (“Divorce Act“);

b) In motion to change proceedings where there is an existing order and an established support obligation under the FLA; and

c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient’s failure to bring the retroactive support claim within the requisite time.”

Colucci v. Colucci, 2017 ONCA 892 (CanLII) at 1-2, 11-16

“Since Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, it has been clear that no tort action exists for wrongful interference with access rights. The remedy against such interference is now governed by s. 35 of the CLRA, which provides for relief by way of a restraining order and a permanent injunction.”

Ludmer v. Ludmer, 2014 ONCA 827 (CanLII) at 42

“The Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. Specific considerations include the nature and sensitivity of the information in the documents in the court file, and whether not making the order could cause harm to a person.

Section 70 of the Children’s Law Reform Act provides as follows:

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

         (i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

         (iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.  2009, c. 11, s. 18.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

Order on application

(3) Any interested person may make an application for an order under subsection

In L.C.F. v. G.F. 2016 ONSC 6732 (CanLII), for example, Justice Harvison Young considered a request for a sealing order and publication ban in the family context. She held that “in any and all judicial proceedings where judges are asked to utilize their discretion to order that public access to a file or proceeding be restricted, courts must apply the well-established Dagenais/Mentuck test: Re Vancouver Sun, 2004 SCC 43 (CanLII) at paras. 23-27… There can be no doubt that any discretion within the family context must be exercised within the constraints of the Dagenais/Mentuck test.” See para. 17.  Judges must engage in a case by case analysis.

At the same time, there is an “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.” See Danso v. Bartley, 2018 ONSC 4929 (CanLII) at para. 52 per Justice Myers. In L.C.F., supra, Justice Harvison Young noted that the analysis with respect to children is “somewhat different,” and that where courts step in to protect children in family cases by imposing restrictions, “the children are demonstrably vulnerable” and generally younger (the youngest child in that case was 16). She notes that publication bans are restricted as much as possible and that sealing orders are rare. See paras. 47-50.”

M.M. v. N.M., 2018 ONSC 6939 (CanLII) at 18-21

“While the “maximum contact” principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon, at para. 24, McLachlin J. noted that:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.”

Bjornson v. Creighton, 2002 CanLII 45125 (ON CA) at 34

“The suitability of a joint custody order depends on there being “some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another”.  That evidence may exist notwithstanding one parent’s professed inability to communicate with the other.  Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.), at paragraph 11.

A Court may find that the parents could and had communicated effectively and put the interests of the children ahead of their own even where the relationship between the parents was, at times, conflictual and with strife.  Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.), at paragraph 16.

Faced with a situation, as here, with a status quo argument being made by one parent, it is not enough for the Court to simply acquiesce to what has been in place as a Temporary Order.  Even if the Court finds that the status quo would be just fine for the children, the Court should go on to consider whether a shared parenting arrangement would be in the best interests of the children.  Lo v. Mang, [2011] O.J. No. 390 (S.C.J.), at paragraph 96.

To help us assess what is in the best interests of the children, we look to the factors listed under subsection 24(2) of the Children’s Law Reform Act (“CLRA”).”

D.C. v. H.C., 2014 ONSC 6696 (CanLII) at 75-78