Month: May 2020

“The court in Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117 (Ont. H.C.), aff’d [1992] O.J. No. 3563 (Ont. C.A.), set out principles to consider when the date of separation is disputed (paras. 6-8):

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (S.C.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium (Dupere) or of repudiating the marital relationship: Mayberry v. Mayberry, 1971 CanLII 717 (ON CA), [1971] 2 O.R. 378, 3 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).

(3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere; Cooper; Mayberry.

(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: Cooper; Mayberry; McKenna v. McKenna (1974), 19 R.F.L. 357, 10 N.S.R. (2d) 268 (C.A.); Vogel v. Vogel (1988), 18 R.F.L. (3d) 445 (Ont. H.C.).

(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna.

1. 1. 1. 7. Under the Family Law Act, the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent: Czepa v. Czepa(1988), 16 R.F.L. (3d) 191 (Ont. H.C.); Vogel v. Vogel; Caratun v. Caratun (1987), 1987 CanLII 4094 (ON SC), 61 O.R. (2d) 359, 9 R.F.L. (3d) 337, 28 E.T.R. 59, 43 D.L.R. (4th) 398 (H.C.). An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns: Czepa. If a mediator is consulted, the purpose for which the mediator was consulted may also be of assistance: Garnick v. Garnick, [1988] W.D.F.L. 150 (Ont. H.C.).
         8. When a spouse makes plans for his or her assets as a separated person the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act. “One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”: Caratunat p. 364….”

T.N.F. v. M.J.V.A., 2018 ONSC 3310 (CanLII) at 15

“In Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 39, the court stated:

While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family take priority over any subsequent obligations), inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family. [Emphasis Added]

As explained in Fisher, and also in Dean v. Dean, [2016] O.J. No. 3521 (Div. Ct.) at para. 83, an obligation to a second family must be considered in context.  For example, was it a voluntary assumption of an obligation for a second family when the payor knows, or ought to have known, of his pre-existing obligation to his first family.  Similarly the court should consider whether there is any evidence that the payor’s obligations to his first family will impoverish his second family.”

Oja v. Oja, 2019 ONSC 3277 (CanLII) at 34-35

“Bad faith is not simply bad judgment or negligence. In S. (C.) v. S. (M.) [2007 CarswellOnt 3485 (Ont. S.C.J.)], 2007 CanLII 20279 at paras. 16-18 and 24, Perkins J. held that bad faith within the meaning of Rule 24(8) encompasses:

• • • behaviour shown to be carried out with intent to:

(a) inflict financial or emotional harm on the other party or other persons affected by the behavior;

(b) to conceal information relevant to the issues; or

(c) to deceive the other party or the court;

• • • behaviour relating to the issues at stake in the case or the conduct of the case;
    • costs incurred in relation to the issues affected by the bad faith; and
    • the essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.”

Goldstein v. Walsh, 2019 ONSC 3174 (CanLII) at 8

“Courts have consistently found that it is reasonable that adult children contribute towards the cost of their post-secondary education, either through student loans, part-time work, summer employment, grants, scholarships, or bursaries, or some combination thereof. However, as set out in Rebenchuk v. Rebenchuk, 2007 MBCA 22, each case depends on its own unique facts, and there are no hard and fast rules for how much the adult child should contribute. The percentage that adult children are required to contribute depends on the circumstances of the child and the parents, including the overall cost of the program, the parents’ incomes, and the adult child’s resources.  The Court stated:

…it is neither desirable nor possible to set forth “bright line” rules that enable judges to determine with mathematical certainty questions of entitlement and the amount for the support of adult children pursuing post-secondary education. This is because of the fact-driven basis upon which all such decisions are made…. there is still an element of judicial discretion. This, in my opinion, is as it should be. See paragraph 97.

Cases suggest that a child’s reasonable contribution to the cost of post-secondary expenses is between 25% – 50%, although in some cases, children are required to contribute as much as 100% (See for example Razavi-Brahimi v. Ershadi, 2007 CarswellOnt 6222 and Lewi v. Lewi 2006 CarswellOnt 3214).  Again, each case depends on its own facts.”

         Alalouf v. Sumar, 2017 ONSC 3043 (CanLII) at 225-226

“I accept the submission of counsel for the respondent that, because of the child support, the SSAGs suggest that no range of spousal support would be payable in 2011 on the incomes of the parties.

It has been observed repeatedly that the SSAG’s do not create an entitlement to spousal support just because they generate a suggested quantum or range. Entitlement is a threshold issue when using the SSAG’s. This case tests the other side of that coin. If the SSAG’s suggest no range of spousal support does that imply no entitlement?

Clearly not. For example, a spouse may have an entitlement to spousal support that is merely postponed while child support is in play. The unusual facts in this case provide another example. A lump sum for spousal support may be the best reflection of the objectives and factors enumerated in s. 15 of the Divorce Act.”

         Heffren v. Silverthorn, 2017 ONSC 3122 (CanLII) at 56-58

“I agree with the appellant’s submission that D.B.S., supra, has made some changes to the legal regime that was in effect in Ontario at the time of the trial decision. In light of D.B.S., it is now clear that the trial judge erred in concluding the respondent had not engaged in blameworthy conduct. In D.B.S., Bastarache J. indicated that any conduct that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support should be characterized as blameworthy conduct. While there is a presumption that the payor parent is acting reasonably by complying with the terms of a previous court order or agreement, this presumption may be rebutted where the change in circumstances is sufficiently pronounced. In determining the reasonability of the payor parent’s belief that his or her obligations were being met, the court should compare the amount the parent actually paid with how much he or she should have paid.

Applying this approach to this case, the respondent’s failure to report the increase in his income must be seen as blameworthy conduct given the magnitude of that increase.

The respondent’s blameworthy conduct in failing to report the increase in his income militates in favour of a retroactive award, but it is not determinative. It is only one of four factors Bastarache J. identified, at paras. 100-16, to be considered:

1. 1. Reasonable excuse for why support was not sought earlier
   2. Conduct of the payor parent
   3. Circumstances of the child
   4. Hardship occasioned by a retroactive award[.]

Importantly, Bastarache J. stressed at para. 99 of D.B.S., supra, “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.”

Baldwin v. Funston, 2007 ONCA 381 (CanLII) at 18-21

“In Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, 221 D.L.R. (4th) 1, the Supreme Court of Canada upheld Nova Scotia’s legislation that provides equalization to married spouses but not to common law spouses. The court stated, at para. 54:

[The Nova Scotia legislation] is primarily directed at regulating the relationship between the parties to the marriage itself; parties who, by marrying, must be presumed to have a mutual intention to enter into an economic partnership. Unmarried cohabitants, however, have not undertaken a similar unequivocal act. I cannot accept that the decision to live together, without more, is sufficient to indicate a positive intention to contribute to and share in each other’s assets and liabilities. It may very well be true that some, if not many, unmarried cohabitants have agreed as between themselves to live as economic partners for the duration of their relationship . . . . It does not necessarily follow, however, that these same persons would agree to restrict their ability to deal with their own property during the relationship or to share in all of the other’s assets and liabilities following the end of the relationship.

Accordingly, there is no presumption that the net family property of common law spouses should be equalized upon breakdown of the relationship.”

Wylie v. Leclair, 2003 CanLII 49737 (ON CA) at 18.

“Our view on this principal issue may be summarized as follows. Section 15(1) of the Charter is infringed by the definition of “spouse” in s. 29 of the FLA.  This definition, which only applies to Part III of the FLA, draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex relationships of a specific degree of duration. We emphasize that the definition of “spouse” found in s. 1(1) of the FLA, and which applies to other parts of the FLA, includes only married persons and is not at issue in this appeal.  Essentially, the definition of “spouse” in s. 29 of the FLA extends the obligation to provide spousal support, found in Part III of the FLA,  beyond married persons to include individuals in conjugal opposite-sex relationships of some permanence. Same-sex relationships are capable of being both conjugal and lengthy, but individuals in such relationships are nonetheless denied access to the court-enforced system of support provided by the FLA. This differential treatment is on the basis of a personal characteristic, namely sexual orientation, that, in previous jurisprudence, has been found to be analogous to those characteristics specifically enumerated in s. 15(1).

The crux of the issue is that this differential treatment discriminates in a substantive sense by violating the human dignity of individuals in same-sex relationships.  As Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, established, the inquiry into substantive discrimination is to be undertaken in a purposive and contextual manner. In the present appeal, several factors are important to consider. First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation. Second, the legislation at issue fails to take into account the claimant’s actual situation. Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case. Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances. Taking these factors into account, it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of “spouse” in s. 29 of the FLA.”

M. v. H., 1999 CanLII 686 (SCC) per Cory & Iacobucci JJ at 2-3

“Turning to spousal support, there is a heavy onus on the party that seeks to vary a temporary spousal support order. Chappel J. summarized the test in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para. 20:

The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson [1972 CanLII 470 (ON CA), [1972] 3 O.R. 403-404] that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.

This test has been applied consistently by the court: Oxley v. Oxley, 2010 ONSC 1609, at para. 26; Biddle v. Biddle, [2005] O.J. No. 737 at para. 18; Boissy v. Boissy, [2008] O.J. No. 2783 at para. 16; Colivas v. Colivas, 2016 ONSC 715 at para. 26.”

Kahansky v. Wilkes, 2017 ONSC 3080 (CanLII) at 69-70

“As discussed, the issue of focus at trial was whether the husband had complied with his financial disclosure obligation under s. 56(4)(a). In Patrick v. Patrick, [2002] O.J. No. 639, 112 A.C.W.S. (3d) 302 (S.C.J.), the husband failed to disclose either the existence or value of his RRSPs prior to entering into a marriage contract. At trial, the husband argued that his failure to disclose was immaterial, since the RRSPs were not to be shared at any time, regardless of their value. Mesbur J. rejected this argument, noting at para. 53 that “[p]arties are, therefore, not even permitted to contract out of the obligation to disclose” and ordered that the contract be set aside for failure to make financial disclosure in accordance with s. 56(4)(a). In reaching this conclusion, at para. 52 the trial judge emphasized the importance of ensuring that parties have a full understanding of their rights before entering into such contracts:

  Marriage contracts are a device by which parties can opt out

  of most or part of the Family Law Act, its property

  provisions, its support provisions, or both. Fundamental to a

  choice to opt out of the legislative scheme is a clear

  understanding of what one’s rights and obligations might be

  if there were no marriage contract. It is in this context

  that financial disclosure is critical.

This view is reinforced in Dubin v. Dubin, [2003] O.J No. 547, 2003 CanLII 2103 (ON SC), 34 R.F.L. (5th) 227 (S.C.J.), at para. 32:

  . . . knowing assets and liabilities at the date of the

  agreement is fundamental to an eventual calculation of net

  family property. A party needs to know what asset base might

  potentially grow, in order to determine what he or she is

  being asked to give up in the agreement. Coupled with

  financial disclosure is the notion of understanding legal

  rights and obligations under the legislative scheme. This

  second notion carries with it the concept of independent

  legal advice. Thus, a party must know what assets and

  liabilities exist at the date of the contract, and must

  understand the general legislative scheme in order to know

  what he or she is giving up in the proposed agreement.”

LeVan v. LeVan, 2008 ONCA 388 (CanLII) at 52-53