Month: July 2020

“I find the conflict between the parties stems primarily from Ms. Brissett’s unrelenting interference with access and her frequent refusal to communicate with Mr. Coughlan rather than any inherent communication difficulty between them. There is no evidence of conflict over child related decisions or their respective parenting views. Mr. Coughlan’s emails tend to be thorough and to the point although over time, they indicate increasing frustration and resentment toward the situation. I find his frustration also manifested itself in his decision to attend at the daycare and ultimately resort to self-help by withholding Leah in an effort to recoup lost access time. Those decisions were wrong and should not be repeated. Ms. Brissett’s written communications, on the other hand, are often vague and unresponsive. The conflict is more fundamental. It rests in Ms. Brissett’s resistance to Mr. Coughlan’s desire and determination to be a parent to Leah.

The Divisional Court recently said, “Gatekeeping is born of a fundamental disrespect for the other parent, as a parent. An order for sole custody to the gatekeeping parent can reinforce that disrespect. Where, as here, parental conflict arises because of the gatekeeping, the intractable nature of the problem is obvious: awarding sole custody to the gatekeeper supports and rewards past gatekeeping and reinforces its lessons for the future.” See J.Y. v. L.F.-T, 2019 ONSC 1718, (Div.Ct), para 15. In that case, the Divisional Court upheld the trial judge’s decision that a joint custody order was the “best way forward” to ensure the continued involvement of a parent in the child’s life in the face of efforts by the other parent to marginalize him or her.”

Brissett v. Coughlan, 2019 ONSC 4330 (CanLII) at 72-73

“The Family Law Act permits an award of retroactive child support: s. 34(f). Whether the Court retroactively increases child support based on the payor’s increased income raises the principles articulated by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

Before I consider the application of the D.B.S. principles, I will address the terms of the annual adjustment of child support in the Separation Agreement. I do not find that these terms are such that take this matter outside of the application of the D.B.S. principles into one of contractual enforcement.

I find this for three reasons. First, both parties are in breach of their contractual obligation under the Separation Agreement to exchange annual income disclosure. I acknowledge that Ms. Delulio’s obligation to provide income disclosure is significantly different during this period than Mr. Persi’s, given that her income is not relevant to the determination of the table child support when the children primarily reside with her. However, as a matter of contract, Ms. Delulio is also in breach of the agreement. Second, the agreement does not mandate automatic adjustments to child support. The agreement provides for an adjustment only if a party determines there should be one. Third, the agreement provides for an amount of monthly child support, $448, which is below the table amount payable for Mr. Persi’s annual income of $47,000 (fn: The table amount payable for two children for income of $47,000 under the May 1, 2006 tables was $710/m). This reduction reflects the parties’ agreement that child support is not determined solely by the application of the Child Support Guidelines table amount but may be adjusted to an amount that, using their words, “was appropriate given the circumstances of the parties and the needs of the children.”

I find, therefore, that the D.B.S. principles apply to Ms. Delulio’s claim for retroactive child support. D.B.S. makes it clear that there is no automatic right to retroactive child support, nor is it an exceptional remedy: para 97. Whether retroactive child support will be granted is a matter of judicial discretion. Three major interests in play in retroactive support cases are:

1. 1. 1. The need on the part of the child and the custodial parent for financial support;

1. 1. 2. The payor’s interest in certainty and predictability when financial obligations appear settled; and

1. 1. 3.    The need for flexibility to ensure a just result.

Ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. This focus includes the core principles that apply to child support, such as that child support is the right of the child, and that ultimately the goal is to ensure that children benefit from the support they are owed when they are owed it.

Within these overarching principles, the court should consider the following four factors in determining whether to allow a retroactive claim:

1. 1. 1. Whether there was a reasonable excuse as to why a variation in support was not sought earlier;

1. 1. 2. The conduct of the payor parent;

1. 1. 3. The circumstances of the child and;

1. 1. 4.    Any hardship occasioned by a retroactive award.

The general rules from D.B.S. are that a retroactive child support order should start from the date of formal notice and that it will usually be inappropriate to make a support award retroactive to a date more than three years before the formal notice was given.”

Delulio v. Persi, 2019 ONSC 4303 (CanLII) at 36-42

“It is based on Ms. Beischer’s challenge to paragraph 64 of the Final Order of Justice Warren that Mr. Cournoyer seeks an order for disclosure of Ms. Schon’s file. Ms. Beischer is adamantly opposed to such an order, based on the sacrosanctity of solicitor/client privilege. It is trite law that solicitor-client privilege is “a principle of fundamental justice and civil right of supreme importance in Canadian law”Lavallee, Rackel & Heintz v. Canada (Attorney General); R. Fink, [2002] 3. S.C.R. 209, 2002 SCC 61, paragraph 36, including in the sphere of Family Law: Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ONSC), paragraph 16. It is also trite law that the privilege is not absolute: Lavallee, supra, paragraph 36, with reference to paragraphs 32 and 34-35 of R. v. McClure, [2001] 1 S.C.R.445, 2001 SCC 14 (CanLII). Mr. Cournoyer agrees that the contents of Ms. Schon’s file are privileged, but he takes the position that Ms. Beischer has waived her privilege in taking the position she has. I agree.

This case is, in my view, very much like that of Einstoss v. Starkman, 2010 CarswellOnt 4685, wherein the wife was seeking: “An order setting aside the equalization payment made pursuant to J. Chapnick [sic] dated May 2, 2000 and a determination of a proper equalization payment to the Respondent/Mother”: pargraph 8. Although not properly plead in these proceedings, this is essentially exactly what Ms. Beischer is seeking.

In Einstoss, the wife’s position was that she did not receive full disclosure at the time of the settlement, and that the husband was hiding something. Ms. Starkman denied that “in advancing this position she is questioning the legal advice provided to her by Torkin Manes at the time.”: paragraph 29.

Ms. Beischer is taking the position in this case that the fault lies with Mr. Cournoyer and/or his counsel in British Columbia, Mr. Cote and Mr. Sekhon. She submits that she and her counsel were materially mislead (she goes so far as to suggest knowingly and purposely so) by Mr. Sekhon, in particular, in relation to his “on the fly” calculation of the value of Mr. Cournoyer’s pension on August 29, 2017, which he confirmed by email to Ms. Schon on August 30, 2019. Ms. Beischer suggests that her position with respect to the faulty nature of her waiver has nothing whatsoever to do with Ms. Schon, but everything to do with this alleged material misrepresentation by Mr. Sekhon. Her position is that access to Ms. Schon’s file is irrelevant, and the privilege she enjoys in respect thereto should not therefore be interfered with.

However, as Justice Kelly stated in Einstoss, at paragraph 32 of the judgment:

1. 1. 32. Where a client puts in issue his or her state of mind or knowledge with respect to matters on which she alleges a breach of duty by his or her solicitors, the client will be deemed to have waived privilege as to all communications and advice received by him or her relating to such matters.”

     Beischer v. Cournoyer, 2019 ONSC 4269 (CanLII) at 15-19

“Every Canadian province has tried to address in some way the inequities or difficulties arising out of the distribution of family assets after the breakdown of a marriage or of a common law relationship to which the same rules apply. Broadly speaking, the provincial legislatures have chosen between two different models: equalization and division of property (R. A. Klotz, Bankruptcy, Insolvency and Family Law (2nd ed. (loose-leaf)), at pp. 4-29 to 4-30).

The equalization model involves a valuation of the family assets and an accounting. The value of the assets is then divided between the spouses, usually in equal parts, although family courts have a limited discretion to order an unequal division. The valuation and the division give rise to a debtor-creditor relationship in the sense that the creditor spouse obtains a monetary claim against the debtor spouse. But the assets themselves are not divided. Each spouse retains ownership of his or her own property both before and after the breakdown of the marriage. Neither acquires a proprietary or beneficial interest in the other’s assets. Assets are transferred only at the remedial stage, as agreed by the parties or as ordered by the family court in exercising its discretion, as a form of payment or execution of the judgment (T. A. Gutkin, “Family Law and Bankruptcy” (1999), 16 Nat’l Insolv. Rev. 26, at pp. 31-32; Balyk v. Balyk (1994), 113 D.L.R. (4th) 719 (Ont. Gen. Div.), at pp. 723-25; Burson v. Burson (1990), 4 C.B.R. (3d) 1 (Ont. Gen. Div.), at paras. 24-25). The division of property schemes, on the other hand, give rise to a proprietary or beneficial interest in the assets themselves, not just in their value (Balyk, at pp. 723-24).”

         Schreyer v. Schreyer, 2011 SCC 35 (CanLII) at 14-15

“The conflict between a custodial parent’s desire to have the children participate fully in their extra-curricular activities in order to develop their skills to their full potentials and an access parent’s desire to maximize the quality time that he can spend with the children and to permit them to spend time with their extended family on his or her side represents a dilemma which I daresay is faced by many separated parents.

In the case of Jelinski v. Grajczky, 2011 SKQB 383 (Sask. Q.B.) (CanLII) McIntyre, J. made the following observations at para. 18 on the facts of that case:

Unfortunately [the child] is caught in the middle of the acrimony which exists between her parents. Her parents cannot communicate with each other in a civil manner. There is no flexibility with their parenting arrangement so as to accommodate [the child]’s wishes and desires. They are both obsessed about “their time” with [the child]. [The father] in particular has put his needs ahead of his daughter’s, given his attitude towards her extra-curricular activities initiated by [the mother]. Rather than support [the child] in her activities as a proud parent he has created anxiety for her. She worries she will not be able to attend some events if she is going to be in her father’s care at the time. [The father] has displayed extremely bad judgment in the events which unfolded after the application was made. He has only himself to blame for the rupture which occurred in his relationship with [the child].”

         Smith v. Smith, 2016 ONSC 4622 (CanLII) at 32-33

“The Children’s Lawyer is an independent crown law officer appointed by the Lieutenant Governor-in-Council on the recommendation of the Attorney General, to represent children within the administration of justice.  By order under section 38 of the Child and Family Services Act and subsection 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, a court has jurisdiction to obtain or request the appointment of counsel for the child to represent the child’s interests.

Upon receiving a case from the Children’s Lawyer, child’s counsel reviews information and advocates a position for the child client.  In addition:

	(a)	Child’s counsel receives authority to act under the court order requesting legal representation.
	(b)	Child’s counsel obtains the child’s views and preferences, if any, that the child is able to express.
	(c)	Child’s counsel does not represent the “best interests” of the child, it being the issue to be decided by the court.
	(d)	Child’s counsel is the “legal representative” of the child and is not a “litigation guardian” or “amicus curiae”.  And
	(e)	The relationship between child’s counsel and the child is a “solicitor-and-client” relationship.

In taking a position on behalf of the child, child’s counsel will ascertain the views and preferences of the child, if any, and will consider (I emphasize this):

	(a)	the independence, strength, and consistency of the child’s views and preferences.
	(b)	the circumstances surrounding the child’s views and preferences.  And
	(c)	all other relevant evidence about the child’s interests.”

Catholic Children’s Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 130, 132-133

“The case law is abundantly clear that in determining a valuation date, “no one factor is necessarily determinative of the issue of when the parties are separated.”: Neufeld v. Neufeld, 2019 ONSC 1277 at 74.

The case of Oswell v. Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278, provides guidance in assisting parties to determine a date of separation.  The Court noted as follows:

In deciding whether spouses are living separate and apart under the same roof, the court must decide when the parties ceased living as a “couple” and began to live separate lives.  The following factors should be considered:  there must be a physical separation; one or both spouses must withdraw from the matrimonial obligation with the intent of destroying the matrimonial consortium; the absence of sexual relations is not conclusive but is a factor to be considered; and the level of communication between the spouses must also be considered.  The parties led an active social life together and did not claim to be separated on their tax returns.  Based on the evidence, the parties did not live separate and apart with no real prospect of reconciliation until January 1988.  As a result, January 1988 was the valuation date under the Family Law Act.

I adopt the Court’s position in Oswell with respect to the important factors in assisting in the determination of the date of separation, which in the case at bar I find is April 2014.

In the case of Dai v. Ding, 2019 ONSC 6118, at para. 38, the court noted as follows:

Much of this case turns on credibility as the parties’ versions of various important fact scenarios are completely polarized. A judge has the overriding authority to determine credibility upon weighing all the factors. Considerable weight is placed on the extent to which the testimony is consistent with other, undisputed and proven facts in the case, but no one factor is determinative. Assessment of credibility is not a scientific process and involves a consideration of many relevant factors.

Paragraph 212 of Dai makes reference to the factors in Oswell which is the leading case with respect to factors to be considered in determining the date of separation.  In para. 212 the court noted as follows:

Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H.C.), remains the leading case with respect to the factors to be considered in determining the date of separation where spouses continue to occupy the same premises. In summary, the factors are as follows:

1.  There must be physical separation.

2.  There must be withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.

3.  The absence of sexual relations is not conclusive but a factors to be considered.

4. Other matters to be considered are the discussion of family problems and communication between the spouses, presence of absence of joint social activities, and the meal pattern

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

Gibson v. Gibson, 2019 ONSC 4174 (CanLII) at 38-42

“In  Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada said that on a summary judgment motion, the judge must first determine whether there is a genuine issue requiring a trial based only on the written evidence before her. If that evidence allows the court to make a fair and just determination on the merits of the motion, there will be no genuine issue. The summary judgment process must allow the judge to make the necessary findings of fact, apply the law to the facts, and be a proportionate, more expeditious and less expensive means to a just result. If, on the other hand, there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion if doing so is consistent with the interests of justice. That will be so if their use will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

The Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, confirmed that the principles established in Hryniak apply to summary judgment motions in child protection cases but emphasized that fairness in child protection matters necessitates caution and consideration of the unique features of such cases including the best interests of the child.”

CAS v. K.M. and A.T., 2019 ONSC 4153 (CanLII) at 18-19

“The husband has not complied with the order of Lauwers J.A. He has made only partial payments since February 2017. The wife seeks a dismissal of the appeal.

This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders: see Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346; Nowacki v. Nowacki, 2015 CanLii 41092 (Ont. C.A.); Martyn v. Martyn, 2010 ONCA 730; Burley v. Burley, 2009 ONCA 2, 244 O.A.C. 198; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.”

Cosentino v. Cosentino, 2017 ONCA 593 (CanLII) at 7-8

“The Ontario Court of Appeal recently affirmed the elements necessary to prove the tort of intentional infliction of emotional distress: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.). The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:

1.   The defendant’s conduct was flagrant and outrageous;

2.   The defendant’s conduct was calculated to harm the plaintiff;

3.   The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.”

A.H. v. D.K. and E.A., 2018 ONSC 4173 (CanLII) at 62