Month: January 2020

“I have already found that there is no triable issue concerning the negotiation of this agreement.  However, in Scheel v. Henkelman (2001) 2001 CanLII 24133 (ON CA), 52 O.R. (3d) 1 (C.A.), Borins J.A. pointed out that the test for the setting aside of a domestic contract under s. 56(4) of the FLA is more stringent than that for setting aside a waiver of spousal support because of unconscionability under s. 33(4)(a) of the FLA.  He states that s. 33(4)(a) is directed towards the unconscionable results of a spousal support waiver as distinguished from an unconscionable agreement:

The use of the phrase “results in” in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application: Mance v. Mance (1981), 22 R.F.L. (2d) 445 (Ont. Co. Ct.); aff’d. (December 18, 1981), Cory, Jessup, Wilson JJ.A. (Ont. C.A.); Newby v. Newby (1986), 1986 CanLII 2616 (ON SC), 56 O.R. (2d) 483 (Ont. H.C.). As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision “results in unconscionable circumstances”. In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.

As set out in Scheel, unconscionability has been defined in a number of ways.  It can be seen as being “shocking to the conscience of the court”, “harsh and unjust” or “improvident or unfortunate”:  see para. 19 and 21 of Scheel.  Borins J.A. suggested at para. 20 that the court consider three factors in determining whether the present circumstances are unconscionable:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b)  the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c)  the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their life-style.”

Milne v. Milne, 2019 ONSC 459 (CanLII) at 72-73

“The main issue before me on this motion is whether I should make an order directing the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act, 1992.

The court has jurisdiction under s. 105 of the Courts of Justice Act to make an order for a capacity assessment. The parties agree that the husband bears the burden of establishing that the order should be made. Section 105(2) provides that:

Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Where, as here, the request for a capacity assessment comes from another party, s. 105(3) applies. It provides:

Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

In 626381 Ontario ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114 (CanLII), Stinson J. made clear that a mental examination should not be the norm on a motion to appoint or remove a litigation guardian. Rather, an order under s. 105 is exceptional. He wrote, at para. 40:

A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

Stinson J. went on to find that a contextual analysis must be employed to determine whether an order should issue under s. 105 in a civil proceeding. He held that the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable, the interests of the other parties and the court, as well as the societal interest in a fair, efficient and effective dispute resolution process: para. 58. He noted that the court cannot make a determination whether a party requires the assistance and protection of a litigation guardian without adequate evidence. Where it is not available, it may be necessary to require a mental examination under s. 105: para. 59.

Although Kagan, Shastri was a decision made in a civil context, the principles enunciated therein with respect to litigation guardians apply equally in the family law context: Costantino v. Costantino, 2016 ONSC 7279 (CanLII) at paras. 36-37. In a family law case, in my view, when considering the possible appointment of a litigation guardian, the court is not concerned only with the litigant, the other parties, itself, and society’s interest; it must also be concerned with the interests of the children who may be affected.”

Sadhu v. Kaul, 2019 ONSC 140 (CanLII) at 10, 12-16

“As noted, under the Family Law Act, the spouse with the greater net family property is required to pay the spouse with the lesser net family property one-half of the difference. However, the court has discretion to award an equalization payment that is an amount other than the difference between the two numbers. Section 5(6) of the Family Law Act provides that the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, a number of factors, including that the amount of the equalization payment is disproportionately large in relation to a cohabitation period that is less than five years: see section 5(6)(e).

Ms. Erkurt submits that she should not be required to pay Mr. Kara an equalization amount based on one-half of the difference between the net family property amounts. Her submission is based on the fact that the marriage lasted less than five years, their period of cohabitation was a brief 17 months, and that her marriage to Mr. Kara was not a real marriage because Mr. Kara did not marry her with the intention of staying married to her but, rather, with the intention of gaining permanent residence status in Canada.

While a shorter marriage may be grounds for an unequal division in some cases, the section only applies if the “unconscionability” threshold is met and one spouse would receive a “disproportionately large” equalization amount in relation to the cohabitation period. In this case, Mr. Kara is entitled to an equalization payment of $3,660.57. I do not find this amount to be disproportionately large in relation to the cohabitation period, notwithstanding that each of the parties is of fairly modest means.

Further, in order for the court to exercise its discretion in this regard, an equal division of the net family property in the circumstances must be “unconscionable”. As set out in MacDonald v. MacDonald (1997), 1997 CanLII 14515 (ON CA), 33 R.F.L. (4^th) 75 (Ont. C.A.), the equalization must “shock the conscience of the court”. This is indeed a high threshold. I accept that Ms. Erkurt is very disappointed that the marriage failed. I also accept her evidence that Mr. Kara told her that he did not wish to be married to her and only used her as a means to immigrate to Canada. However, I do not find that this evidence in and of itself meets the threshold. As Feldman J.A. stated in Ward v. Ward, 2012 ONCA 462 (CanLII), 111 O.R. (3d) 81, at para. 25, referring to the trial judge’s reasons, “the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases.”

Kara v. Erkurt, 2019 ONSC 31 (CanLII) at 51-54

“As observed by Minnema J. in Rebiere v. Rebiere, 2015 ONSC 1324 (CanLII), 59 R.F.L. (7^th) 414 at para. 14, “[i]t is not always necessary to call expert evidence to prove values for minor assets”; a court can even “ballpark” the value of household contents in the absence of evidence of value: Alaouf v. Sumar, 2017 ONSC 3043 (CanLII), [2017] W.D.F.L. 3566 at para. 73.  But to arbitrarily pick a value in circumstances where there is no evidence even minimally identifying the contents, their cost, their date of purchase, or their condition on the valuation date, or at some later point in time, is to simply engage in guesswork.  I am not prepared to guess.  No value shall be attributed to the wife for the household contents which she retained or of which she disposed.”

Testani v. Haughton, 2019 ONSC 174 (CanLII) at 38

“Contingent rights are included in the definition of property for the purposes of determining net family property and shareholder loans are a common contingent asset. The Ontario family law legislation does not place a direct limit on this type of property, unlike in Manitoba, where section 9(1) of the Family Property Act, C.C.S.M. c. F25, provides that in regard to rights that are present, future, or contingent, “… the Act does not apply where there is in fact ascertained, as at the closing and valuation date, that there is no reasonable possibility of the rights ever being realized.”  Justice Stefanson interpreting this more restrictive legislation in regards to shareholder loans stated that:

The mere fact that corporate liabilities exceed assets by an amount greater than a shareholder’s loan does not, by itself, result in the exclusion of shareholder’s loans from the Marital Property Act accountings. (Curtis v. Curtis (1999), 1999 CanLII 14189 (MB QB), 137 Man.R. (2d) 302 (Man. Q.B.) at para 14.)

Justice Karakatsanis made a similar interpretation of the Ontario property definition in Fantin v. Gillingham-Corkun Fantin (2003), 37 RFL (5th) 327, 2003 CanLII 2114 (ON SC), 2003 CanLII 2114 (ONSC), at para 41:

The definition of ‘property’ contained in section 4(1) of the Family Law Act is extremely broad and covers future and contingent interests. This is a right to future payments that is not too remote and does not require the future personal effort of the individual.

Justice Mesbur considered a shareholder loan in dispute in Bursey v. Base (2007), 156 A.C.W.S. (3d) 405 (ONSC).  The husband took the position that it should not be included in his income because on the valuation date the business was not able to repay the amount and had no likelihood of being able to in the future.  Justice Mesbur found stated at para 55:

The corporate assets around valuation day were just sufficient to repay the bank liability. There was no additional ability to repay the shareholder’s loan. For that reason, I would value the shareholder’s advance at “nil”, since there was no reasonable likelihood the debt would be repaid.

The case law suggests that, while a shareholder loan contingent on a company being able to pay in the future is technically property, if there is no likelihood of recovering the loan in the future, it should not be included. This would be in situations where there is no reasonable likelihood of recovery or where the chance of recovery is too remote or would require personal effort of the party.  Conversely, if it does seem likely the loan could be repaid in the future then it should be included as it is a form of contingent equity pursuant to section 4(1) of the Family Law Act.”

Baiu v. Baiu, 2014 ONSC 216 (CanLII) at 116-119

“Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization [See Note 13 below] of their property), the duration of their cohabitation and any other relevant factors.

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower- income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower- income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self- sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.”

Fisher v. Fisher, 2008 ONCA 11 (CanLII) at 53-55

“The leading case on adding parties is Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC).  In that case, Justice Grant Campbell stated, at paragraph 22:

[22]      Since the court’s discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former rules continue to apply.  In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

	(i)	whether the addition of the party is in the best interests of the child,
	(ii)	whether the addition of the party will delay or prolong proceedings unduly,
	(iii)	whether the addition of the party is necessary to determine the issues, and
	(iv)	whether the additional party is capable of putting forward a plan that is in the best interests of the child.

In addition to these four factors, Justice Campbell stated, at paragraph 24:

[24]    Consequently, in addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.

At paragraph 25, Justice Campbell went on to state:

[25]      “Legal interest” is defined in Black’s Law Dictionary, 7th ed., (St. Paul, Minn.:  West Group, 1999) as “[a]n interest recognized by law, such as legal title.”  In child protection proceedings, an interest recognized by law occurs when a court has the opportunity to make an order for or against a person in relation to the child.  For example, subsection 57(1) of the Child and Family Services Act enumerates the types of orders that a court must make where a child is found to be in need of protection.  Each of the possible orders creates a legal interest in so far as the placement of the child is concerned.  Paragraph 1 of subsection 57(1) creates a legal interest for “a parent or other person”, paragraph 2 of subsection 57(1) creates a legal interest for the “society” and paragraph 3 of subsection 57(1) creates a legal interest for “the Crown”.  The parent or other person, the society and the Crown all have a legal interest in the proceedings because an order for the placement of the child can be made for or against them.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (CanLII), the Court of Appeal stated, at paragraph 24:

[24]      It is not necessary for all factors [in H.(S.), supra] to favour the person seeking party status for the court to add him or her.

Accordingly, what this court takes from all of the foregoing is that these are the five considerations the court must examine in deciding, on balance, whether it would be appropriate to add the paternal grandparents as parties.”

Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14 (CanLII) at 28-32

“This appeal is transferred to the Divisional Court, without prejudice, on the basis that we do not have jurisdiction to hear it.

The order being appealed provides for child support for the son, Mehrtash Samadzadeh, at $250 per month, terminates child support for the daughter, Mahsa Samadzadeh, and dismisses the mother’s claim for retroactive support.  The order was made in response to the father’s variation motion and the mother’s cross-motion to vary support for both children.  The mother seeks support of $434 per month for her son as well as retroactive support in respect of both children totalling $16,566.  Prior to the motion, the father was paying support for both children in the amount of $310.28 per month.

Section 19(1.2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that if the appeal relates to a final order “for periodic payments that amount to not more than $50,000, exclusive of costs in the 12 months commencing on the date the first payment is due under the order”, the appeal is to be heard in the Divisional Court.  In relation to the order for Mehrtash, the amount in issue is clearly within the jurisdiction of the Divisional Court.  Section 19(1.2)(c) provides that if the appeal relates to a final order “dismissing a claim for an amount that is not more than” $50,000 (or periodic payments totalling $50,000 in the 12 months commencing on the date the first payment is due), exclusive of costs, the appeal lies to the Divisional Court.  The termination of support for Mahsa amounted to a dismissal of the mother’s cross-motion for increased support of less than $50,000 and the total amount for both children is significantly less than periodic payments totalling $50,000 per year.

In respect of the claim for retroactive support, pursuant to s. 19(1.2)(a), the jurisdiction of the Divisional Court extends to a final order “for a single payment of not more than $50,000, exclusive of costs” and the amount in issue here is, again, significantly below that amount.

Bahadori v. Samadzadeh, 2009 ONCA 10 (CanLII) at 1-4

“As a matter of law and common sense, joint custody requires a high degree of cooperation between the parents: Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No. 1801 (C.A.). The issue before the trial judge in a custody case is the best interests of the child. Where one parent professes an inability to communicate with the other parent, that assertion alone does not mean that a joint custody order cannot be considered. Rather, the court must consider whether there is some evidence that, despite their differences, the parents are able to communicate effectively with one another: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.); Giri v. Wentges, 2009 ONCA 606 (CanLII), [2009] O.J. No. 5173 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 438.

Joint custody is not appropriate where parents are unable to cooperate and communicate effectively and are unlikely to be able to achieve a sufficient level of cooperation: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (C.A.); Kappler v. Beaudoin, 2000 CanLII 22579 (ON SC), [2000] O.J. No. 1558 (S.C.J.). However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of cooperation: Lawson.

There is no default position in favour of joint custody in Ontario. Each case is fact based and discretion driven. Past parenting experience, both during cohabitation and after separation, is of critical importance to the court’s decision whether to order shared parenting in any form: Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.).

Joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. In a parallel parenting regime, the court typically allocates decision-making on major matters so that in the case of conflict, one parent will have final say: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178 (C.A.).”

Ince v. Mattson, 2019 ONSC 120 (CanLII) at 132-135

“Most of the case law on this subject has arisen in the context of applications to increase child support retroactively.  The general principles and underlying rationale apply, however, to cases where the paying spouse seeks to retroactively reduce child support payable to reduce or eliminate arrears that have accrued or to obtain reimbursement of an overpayment.

In deciding whether to rescind child support arrears, the court will consider, inter alia, the following factors:

a)  The nature of the obligation to provide support, whether contractual, statutory or judicial;

b)  The ongoing financial capacity of the payor spouse;

c)  The ongoing need of the custodial parent and the dependent child;

d)  Unreasonable and unexplained delay on the part of the parent seeking to enforce payment of the obligation;

e)  Unreasonable and unexplained delay on the part of the payor spouse to seek appropriate relief from his or her obligation;

f)  Where payment of the arrears will cause undue hardship, the exercise of the court’s discretion to grant a measure of relief is based on a holistic view which weighs the needs of the child and custodial parent, and the current and future capacity of the parent who must pay the arrears.

(See DiFranscesco v. Couto, 2001 CanLII 8613 (ON CA), [2001] O.J. No. 4307 (ON C.A.) at para 23.)”

         Kimbrell v. Kimbrell, 2017 ONSC 142 (CanLII) at 72-73