Month: July 2021

“In Serra v Serra, 2009 ONCA 105 (CanLII), 2009 CarswellOnt 513 (Ont. C.A.), the Court of Appeal for Ontario noted that the threshold of “unconscionability” under s. 5(6) is exceptionally high and that, to cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court.” In Medeiros v Medeiros, [2009] O.J. No. 4309 (Ont. C.A.), the Court of Appeal noted that the factors set out in s. 5(6) must be considered in light of all the relevant circumstances.

In Kucera v Kucera, [2005] O.J. No. 1514 (Sup. Ct.), Heeney J. considered the situation where a spouse brought the matrimonial home into a short marriage. The court explained the policy rationale underlying s. 5(6)(e) at paras. 18-19:

Marriage is a form of partnership, and it is inherently fair that wealth accumulated during the life of that partnership should be shared equally.

Where the [Family Law] Act potentially becomes unfair is where the special provisions discussed above come into play. This is because the equalization process does not only share wealth accumulated during the marriage, but also shares the value of one specific asset, the matrimonial home, that was accumulated prior to the marriage. In very short marriages, this represents an unjustifiable windfall to the non-titled spouse. So long as the marriage is of a duration of less than give years, s. 5(6) is available to redress that unfairness.

The court went on to consider the following factors in terms of determining whether s. 5(6)(e) was engaged:

• Whether the home was purchased before the marriage, and the contributions of the non-titled spouse;
• Whether the home was improved during the marriage in any way;
• Whether the titled spouse covered maintenance costs, as well as other living expenses for both parties;
• Whether the bulk of the presumptive equalization payment is a result of the value of the matrimonial home;
• Whether the non-titled spouse improved their financial position even without the presumptive equalization payment, including repayment of debts brought into the marriage; and
• Whether there were children.

Applying these factors, the court found that it would be unconscionable to award the wife an equalization payment generated almost entirely from a matrimonial home that the husband had brought into the marriage where: the marriage was short, the husband had acquired the home well before the marriage, and the wife had made no substantial contributions towards the home’s maintenance. The court allowed the husband to exclude the value of the home as of the date of marriage to determine equalization, and further reduced the award by 1/6^th on account of the length of the marriage.

Latchman v Sullivan, 2013 ONSC 2536, involved an uncontested trial where the main issue was division of family property. The parties cohabited for 10 years but were only married for 17 months. The wife purchased the home before the marriage but during the cohabitation period, with title solely in her name. The husband did not contribute any money towards the purchase of the home and made minimum contributions to its maintenance. The wife incurred debts for the benefit of the husband during the marriage which the husband never repaid. Based on these facts, the court allowed the wife to deduct the home’s value as of the date of marriage, and credited ½ of the mortgage payments, second mortgage, and truck loan balance made since separation such that the husband owed an equalization payment to the wife.

In Li v Zhao, 2012 ONSC 2121, the matter also proceeded by way of uncontested trial and, like the matter before this court, the husband did not provide any financial information. The court was satisfied that the husband had assets he had not disclosed that were equal to or greater than the mother’s assets. Accordingly, it assumed that their net family property was equal. However, the judge went on to note that, even if he was wrong, he would have not ordered the wife to pay equalization because she incurred a disproportionately larger amount of debt in support of the family.”

            Cheung v. Lim, 2020 ONSC 4387 (CanLII) at 15-20

“Evidence is admissible if it is relevant, material and not otherwise the proper subject of an exclusionary rule.

“Relevance” is a matter of every day experience and common sense.  Evidence that is not logically probative of the fact requiring proof (a fact in issue) is generally inadmissible.  To be probative, the evidence must increase or decrease the probability of the truth of the asserted fact to which it is said to relate:  see Ontario v. Rothmans Inc., 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 110.  Indeed, in order for evidence to be “relevant” it must have some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence:  see R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47.

“Materiality” is a legal concept that directs an inquiry into whether the fact that the party seeks to prove bears any relation to the issues in the proceeding as determined by both: the applicable substantive and procedural law; and the issues raised by the pleadings.

An affidavit ought not to contain argument, speculation and irrelevant information.  Legal arguments belong in a factum, not in affidavit form.  Generally, legal submissions contained in an affidavit should be struck pursuant to r. 25.11 of the Rules, as scandalous, frivolous, or vexations:  see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (Ont. S.C.).  Assertions in an affidavit that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations may be struck out as scandalous:  see George v. Harris, 2000 CarswellOnt 1714 (S.C.) at paras. 19-20.”

Enns v. Goertzen, 2019 ONSC 4233 (CanLII) at 65-68

“Assessments, while not binding on the judge deciding a matter, can be useful, even persuasive, in assisting the court to determine whether a proposed custodial arrangement would be beneficial to a child. They combine professional training with investigative powers to produce first-hand, independent information and insights not otherwise available. For various reasons, however, not the least of which is their cost and the time necessary to prepare, they are not routinely ordered. A judge must be satisfied the cost/benefit considerations clearly favour the ordering of an assessment. The importance of a cautious approach to ordering assessments was explained by Blishen J. in Glance v. Glance (2000) CarswellOnt 3169 at para 12:

Assessments by their very nature are intrusive.  They are also expensive and time consuming.  There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment.  The paramount concern must be the best interests of the child. The order for an assessment must have a proper evidentiary basis and it must be in the best interests of the child to order such an assessment.

In addition, they should not be used to find evidence to make a case or to enlist the assessor to provide support for the parent’s factual narrative (see Jonkman v. Murphy, 2011 ONSC 3917).”

         Donaldson (McGuire) v. Hill, 2020 ONSC 4330 (CanLII) at 16-17

“There is no dispute that courts generally have the power to award retroactive child and spousal support where warranted. Although the two claims are distinct, the considerations and criteria underlying both awards, and the arguments relating to them, overlap. That said, there remain differences in the approaches to them. Relying on the analysis of Bastarache J. in D.B.S. v. S.G.R., 2006 SCC 37, [2006] 2 S.C.R. 231, (a retroactive child support case), Cromwell J. summarized this in Kerr v. Baranow, 2011 SCC 10, [2010] 1 S.C.R. 369, (a retroactive spousal support case), at paras. 206-7 in the following way:

… I prefer to follow the example of Bastarache J. in [D.B.S.] and consider the relevant factors that come into play where support is sought in relation to a period predating the order.

While [D.B.S] was concerned with child as opposed to spousal support, I agree … that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reasons for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.  I will mention some of those differences briefly, although certainly not exhaustively.

The primary difference highlighted by Cromwell J. relates to the different legal foundations upon which child and spousal support are based. Child support is automatic; spousal support is not. Cromwell J. articulated this at para. 208:

Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth.  In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see [D.B.S.], at paras. 36-39 ,47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interest.  Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. [Emphasis added.]

In the context of dealing with both retroactive spousal and retroactive child support claims, Kerr and D.B.S. both emphasize, in the end, “the need for flexibility and a holistic view of each matter on its own merits”: Kerr, at para. 212; D.B.S., at para. 99.”

Rosenberg v. Gold, 2016 ONCA 565 (CanLII) at 41-43

“I am also not prepared to impute to the father an income on account of the monetary gifts he and his family have received from his parents.  In Bak v. Dobell, 2007 ONCA 304, 86 O.R. 3(d) 196, the Ontario Court of Appeal stated at para. 74:

Although it seems that legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

In considering whether it would be appropriate to do so, the Court of Appeal stated that a court had to consider the following factors:

–    The regularity of the gifts;

–    The duration of their receipt;

–    Whether the gifts were parent of the family’s income during cohabitation that entrenched a particular lifestyle;

–    The circumstances of the gifts that earmark them as exceptional;

–    Whether the gifts do more than provide a basic standard of living;

–    The income generated by the gifts in proportion to the payor’s entire income;

–    Whether they are paid to support an adult child through a crisis or period of   disability;

–      Whether the gifts are likely to continue;

–      And the true nature and purpose of the gifts.”

K.A.F. v. J.L.F., 2017 ONSC 4279 (CanLII) at 20-21

“The Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 established that the CYFSA is particularly remedial for Indigenous children. The court is to consider the importance of preserving a child’s cultural identity and connection to her community in recognition of the uniqueness of First Nations, Inuit, and Métis cultures, heritages, and traditions.

The preamble of the CYFSA includes the following:

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

The finding that the child is First Nations is important and should be made as early as possible in the proceedings because it triggers obligations for the Society and the court. The Society is to give special consideration and provide specialized services. Their decisions are to recognize the importance of the child’s cultural heritage and connection to the community. The court is also to consider these issues prior to making findings and reaching disposition.

The court was left to balance the objectives and mandate of the legislation. On the one hand, it is essential to move these matters on toward a permanent resolution for the benefit of the child. The mandate of the legislation includes, as one of its purposes, providing services in a manner that ensures “early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests.”

Kawartha-Haliburton Children’s Aid Society v. AR and DB, 2019 ONSC 4191 (CanLII) at 4-7

“Over the course of a three day trial, the application judge heard testimony from 8 witnesses and reviewed the written record containing 20 affidavits. As this court stated in A.M.R.I. v. K.E.R., 2011 ONCA 417, at para. 88,

A Hague application judge’s decision attracts considerable deference from this court … [A]ppellate review of a Hague decision is not a hearing de novo or an invitation to relitigate the matters determined on the application: Katsigiannis at para. 30; Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), [2004] O.J. No. 3256, 242 D.L.R. (4th) 385 (C.A.), at para. 10.  But, the deference usually accorded to a Hague ruling is displaced where the Hague application judge applied the wrong legal principles or made unreasonable findings of fact: see Jabbaz v. Mouammar, 2003 CanLII 37565 (ON CA), [2003] O.J. No. 1616, 171 O.A.C. 102 (C.A.), at para. 36; Katsigiannis, at para. 31.”

Bazargani v. Mizael, 2015 ONCA 517 (CanLII) at 12

“Since the release of Ribeiro, other courts have consistently held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others: Skuce v. Skuce, 2020 ONSC 1881, at para. 85.

I find that the respondent is not prepared to follow COVID-19 protocols in the future. The applicant has established that the respondent’s behaviour is of the sort contemplated by Pazaratz J. when he wrote, “in some cases a parent’s lifestyle or behaviour in the face of COVID-19… may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.” The respondent has demonstrated no parental insight, or COVID-19 awareness.

The respondent is aware that his behaviour has led to the applicant suspending what was his significant parenting time with I.S.. Despite the government and public health messages about the risk of COVID-19, despite the applicant’s clear will to act in the face of her concerns, despite the case law that suggests that courts will take COVID-19 seriously, the respondent has preferred his agenda – politicizing a virus – over his parenting time with his son.

In these circumstances, given the respondent’s complete failure and unwillingness to follow COVID-19 protocols, now or in the future, I order that, on a temporary basis, I.S.’s primary residence shall be with the applicant. The respondent’s parenting time shall be by video only, three times weekly, on Mondays, Tuesdays and Wednesdays, at 12:45 p.m., to be facilitated by the child’s nanny, or otherwise as the parties may agree.

The respondent may resume in-person parenting time with I.S. with the agreement of the applicant. If she does not agree, he may apply to the court for a resumption of in-person parenting time after (i) he obtains a negative test result for COVID-19 or alternatively, self-isolates for fourteen days, and (ii) he begins following and commits to continue following government and public health protocols with respect to the coronavirus.”

A.T. v. V.S., 2020 ONSC 4198 (CanLII) at 19-23

“The appellant’s attack on the motion judge’s decision rests in part on unsworn financial information filed for the first time on appeal. This information purports to set out the value of the parties’ assets, and, he alleges demonstrates inaccuracies in the respondent’s financial statement on which the uncontested order was based.

The most fundamental obligation of a party to a family law action is to make early, complete financial disclosure. The appellant has never filed a financial statement. It is not open to him now to rely on unsworn financial information that was not part of the record before the motion judge.”

         Mackey v. Rerrie, 2016 ONCA 541 (CanLII) at 5-6

“The test with respect to when a party’s conduct amounts to “bad faith” is set out in several cases.  It may be summarized from Scalia v. Scalia, 2015 ONCA 492 (Ont. C.A.) (CanLII) as para 68:

[68]      The application judge was obliged to identify and apply the legal test governing bad faith in this context. This he did not do. The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff’d 2010 ONCA 196 (CanLII), 2 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.”

Fox v. Fox, 2018 ONSC 4156 (CanLII) at 21