Month: April 2022

“Where a party seeks to alter, or to replace any final term of an Order in its entirety, the requirements to bring a Motion to Change (or at least some form of an amended pleading), and to satisfy the material change threshold do not disappear, just because the December 20, 2018 Order was a consent Order, and just because one parent or the other now wants different wording.  See McCall v. Res, 2013 ONCJ 254 ¶ 1-23 and see specifically ¶ 23.

There is nothing new in the amendments to the legislation that would allow otherwise.  In fact, section 18(4) of the new Children’s Law Reform Act states that the amendments, which came into effect on March 1, 2021, do not, in themselves, constitute a material change in circumstances.  Section 29 of the new legislation continues to prohibit a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order.  And section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary ones.

Furthermore, to the extent that others of the parents’ claims would require the Court to change, prior to trial, a pre-existing temporary or final term in an Order, there are different legal questions that apply to those requests, too.  That is not to say that the Court cannot intervene, in a child’s best interests in situation of urgency, even if the motion was procedurally improper.  But as I will explain, I do not find it appropriate to do so in this case regarding almost all of the parties’ claims in their motions.

 I begin with the material change test, required by section 29 of the Children’s Law Reform Act.  Various, well-established principles govern a material change analysis.  See Gordon v. Goertz,1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60.  In this case, I am mindful that the principles should be adapted somewhat because the previous Orders, now in issue, were consent Orders.

Regarding the material change threshold:

(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;

(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;

(c) the focus is on the prior order and the circumstances in which it was made;

(d) the change should represent a distinct departure from what the court (or the parties) could reasonably have anticipated in making the previous order; and

(e) the Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not;

(f) the subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.

And if the Court finds that a material change has occurred:

(g) the Court should consider the matter afresh, without defaulting to the existing arrangement;

(h) the Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;

(i)  the Court must be guided by the statutory criteria set out in section 24 the Children’s Law Reform Act;

(j) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and

(k) the Court should limit itself to whatever variation is justified by the material change in circumstance.

         B.R.M. v. M.A.E.M., 2021 ONSC 2791 (CanLII) at 38-42

“An order under s. 12 order is a discretionary order.  The court may make an order under this section upon balancing the relevant three factors under a contextual approach to the facts. The three factors are succinctly summarized in Bronfman v. Bronfman 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (Ont. S. C.) as follows:

The relative strength of the case made out by the moving party; 

The balance of convenience (or inconvenience); and, 

Irreparable harm.

Under the first factor, the court assesses the strength of the moving party’s case for financial claims, including claims to interests in property. The primary consideration for the court to weigh on this branch of the test is the likelihood that the moving party will be entitled to receive a judgment at trial. Preservation orders are most often brought prior to the final determination of questions of entitlement and the determination by a court of any amount one party is to pay another.  A fact-driven analysis must be made by the court to ascertain whether one party will likely owe funds to the other party under the Family Law Act, or for an equitable claim.  This analysis is often limited by the evidentiary record before the court, and allowances must sometimes be made having regard to the stage of the case at which the motion has been brought and any obstacles the moving party has encountered in obtaining disclosure from the other side.

The Applicant has referred the court to the case of Both v. Both, [2008] O.J. No. 1358.  In Both v. Both, Backhouse J. found that the wife had raised a prima facie case that she is entitled to a substantial equalization payment. Although the parties’ affairs were “very complex and the record is undeveloped” which made “the quantum of the wife’s equalization payment very difficult to assess even on a preliminary basis”, there was a common understanding that  the husband would owe the wife a fairly significant sum of money.

In Bronfman, Sachs J. held that “there are certain cases where the factual record, and the applicable  legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount”. In such cases, the first factor will be given heavier weight than perhaps the other two remaining branches of the test.  Although the record was not fully developed, Justice Sachs ultimately granted a preservation Order as both sides had not been in a position to obtain their valuations of assets.

…

In the second part of the test, the court is required to look at the inconvenience the order would cause to the Respondent, balanced against the effect, or risk, that would be caused to the Applicant if the assets were disposed of before trial.

Justice Kiteley in Adler v. Adler, 2016 ONSC 2414 wrote that the objective of a preservation order is to “[respond] to the need to create a situation where the Applicant’s claims for an equalization payment are protected, and her claims for support are not impaired or defeated”.

In Adler, the court stated that the more complex and the more need the responding spouse has for unfettered flexibility in his financial affairs, the greater the need to make an order pursuant to sections 12 and 40.  Kiteley J. explained that, while the court appreciates the responding party’s necessary transactions, such freedom cannot be limited under the guise of ‘convenience’ to the extent where the moving party would be prejudiced. This is particularly highlighted in cases, such as the present one, where there has been a flagrant disregard of court orders.

…

For the third and final factor, the court must examine any crucial or negative effect that a preservation order will cause to either party.  Under this factor, the court also considers whether either party will suffer significant harm if the order is not made.

The Applicant refers again to the decision of Backhouse J. in Both v. Both that featured a risk analysis to determine irreparable harm. In the case of Both, the husband had encumbered the matrimonial home with a $2M mortgage after separation without the wife’s consent, even though he knew or ought to have known her consent was required. The motions judge found that the husband had orchestrated additional large encumbrances and the movement of property from one corporation, in which the wife held an interest, to a corporation in which she did not. The court held that there “is a real risk that if the requested order is not made, that the wife’s equalization claim could be defeated”.”

         Qureshi v. Qureshi, 2021 ONSC 2750 (CanLII) at 46-49, 51-53, 55-56

“The Ontario Court of Appeal dealt with the interplay between ss. 72(1)(f) and 72(7) of the [Succession Law Reform Act] in Dagg v. Cameron Estate, 2017 ONCA 366 (CanLII).  Brown J.A., writing for a unanimous court, framed the issue to be decided as follows at para. 5:

The novel issue raised by this appeal can be stated in the following way: Where a support payor owns a life insurance policy and has been required by court order to name the spousal or child support recipient as the irrevocable beneficiary of the policy, upon the payor’s death what rights does the support recipient have to the policy’s proceeds in the face of a competing claim by another dependant of the deceased brought under Part V of the SLRA?

At paras. 75 and 76, Brown J.A. effectively found that where a payor is subject to a court order that requires her/him to name a support recipient as an irrevocable beneficiary, that portion of the insurance proceeds needed to satisfy support payments is not subject to the “clawback” sections of the SLRA:

I conclude that where, at the time of his death, a spousal or child support payor owns a policy of insurance that is subject to a court order requiring the designation of the support recipient as the irrevocable beneficiary of the policy, s. 72(7) protects from the claw back of s. 72(1) that part of a policy’s proceeds needed to satisfy the deceased’s obligations to the spousal and child support recipients, calculated in accordance with the support orders in place at the time of his death. I reach this conclusion in the following way.

Under both the FLA and the Divorce Act, a court can secure the payment of support obligations by formally granting a charge against property. However, the jurisprudence discloses that the more common practice is for a court to order a support payor to designate the support recipient as the irrevocable beneficiary under a life insurance policy. While colloquially such an order is described as one that “secures” payment of the support obligations in the event of the payor’s death, it would be more accurate to say that such an order makes available a pool of money — the proceeds of the life insurance policy — to satisfy the support payor’s obligations calculated in accordance with the support orders in place at the time of his death.  [Emphasis added.]

The court was clear, however, that not all life insurance requirements described in separation agreements are intended simply as “security” for support payments.  At para. 83, Brown J.A. stated:

Second, [the support recipient]’s rights as a creditor of the deceased in respect of the Policy for the purposes of s. 72(7) flow from court orders. Those rights can be no greater than what the courts could confer under such orders. Under the FLA and Divorce Act, courts only have the jurisdiction to order life insurance beneficiary designations to the extent needed to satisfy support obligations. Such orders can provide no greater protection in the face of a competing claim to the policy’s proceeds by a claimant under Part V of the SLRA. Should parties intend a life insurance policy to operate as a kind of “stand alone” benefit upon the payor’s death, not linked to his obligation to pay child or spousal support, it is open to them to strike such a bargain and memorialize it in a separation agreement: Turner v. DiDonato, 2009 ONCA 235 (CanLII), 95 O.R. (3d) 147, at para. 38. [Emphasis added.]

Thus, I must determine whether or not the life insurance clause in the Birnies’ Separation Agreement was intended to act as a pool of funds to “secure” Mr. Birnie’s spousal support obligations or whether it is a “stand alone” benefit as described in Turner v. DiDonato.”

         Birnie v. Birnie, 2019 ONSC 2152 (CanLII) at 27-30

“A grave risk of harm to a child’s mother can establish a risk to the child as well:  Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at para. 41.”

Zafar v. Saiyid, 2018 ONCA 352 (CanLII) at 18

“The Father submits that Madison should be required to contribute $2,000 of her own earnings towards her education. He also points out that her student loan covered almost all of her educational costs. The Mother believes the Father should have to pay, irrespective of the student loan, as it would not have been necessary had he contributed.

It is well established that a child should contribute to their own education to the best of their ability. They do not have to contribute every cent they earn, but their earnings must be considered and balanced with the income of their parents: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at paras. 39-42.

In addition, when determining the proper expense to be paid, the court is to consider any subsidies, benefits or income tax deductions or credits received: s. 7(3), Guidelines. A student loan is not considered a “benefit” within the meaning of s. 7(3) of the Guidelines: Roth v. Roth, 2010 ONSC 2532, at para. 16(e). The receipt of a student loan by a child will not always eliminate the obligations of a paying parent. The court must determine the reasonableness of taking such loans into account in the circumstances of each case: Coghill v. Coghill (2006), 2006 CanLII 28734 (ON SC), 30 R.F.L. (6th) 398, at para. 44; Roth, at para. 16.

Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45.

Madison should be commended for her hard work and her contributions to her education. This skill will bode well for her in the future. Given her earnings, it is only reasonable that she contributes her share. The sum of $2,000, as suggested by the Father, is a reasonable contribution.”

         Jackson v. Jackson, 2021 ONSC 2614 (CanLII) at 58-62

“The importance of relevant financial disclosure in family law cases is well-recognized.  Delays in disclosure impede the progress of an action, act to the disadvantage of the opposite party, and impact the administration of justice: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11-12.

When a spouse controls a corporation and their income is necessary to determine the amount of child support, the Guidelines require that the payor spouse provide the other spouse with corporate documents.  Those documents include, for the corporation’s three most recent taxation years: the financial statements of the corporation and its subsidiaries; and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal with at arm’s length: see ss. 21(2) and 21(1)(f) of the Federal Child Support Guidelines, SOR/97-175.

When a spouse is a shareholder, director or officer of a corporation, the pre-tax income of that corporation is relevant to the determination of their annual income. If the court is of the opinion that the amount of the spouse’s income does not fairly reflect all of the money available to the spouse for the payment of child support, the court may include all or part of the pre-tax income of the corporation. All amounts paid by the corporation as salaries, wages, management fees, or other payments or benefits to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances: see s. 18 of the Guidelines.

If the payor spouse does not control the relevant corporation, there are two provisions of the Family Law Rules, O. Reg. 114/99, that permit the court to make orders for document disclosure from a non-party:

i.    If a document is in a non-party’s control that is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may order the non-party to produce the document to the party: Rule 19(11).

ii.    The court may order a non-party to disclose information where:

a.    it would be unfair to the party who wants the disclosure to carry on with the case without it;

b.    The information is not easily available by another method; and

c.    The disclosure will not cause unacceptable delay or undue expense: Rule 20(5).

On this motion, the onus is on the mother to satisfy the court that production should be ordered: see Weber v. Merritt, 2018 ONSC 3086, 11 R.F.L. (8^th) 177, at para. 29.

Non-party disclosure in family litigation is generally more permissible than under the Rules of Civil Procedure, and judges should exercise “liberal and generous discretion” in ordering non-party disclosure in the family context. This is because it is common in family litigation for parties to make use of close family members for purposes of concealing income or assets: see Weber at para. 33; Hagey-Holmes v. Hagey, 2005 CanLII 23324 (ON SC), [2005] O.J. No. 2760 (Ont. S.C.), at para. 32.

It is not uncommon in the family law context for family members and their businesses to align themselves to support and protect a family member defending a property or support claim: see Weber at para. 34; Loeb v. Loeb, 2013 ONSC 1730, 34 R.F.L. (7th) 149, at para. 42.”

         Hohl v. Hohl, 2021 ONSC 2182 (CanLII) at 20-26

“It is clear to the court based on the evidence filed that the respondent has been the parent who makes and takes the children to their doctor’s appointments and specialist appointments both prior to and after separation.  It is further clear to the court that the lack of communication between the parties is primarily due to the applicant’s refusal to communicate with the respondent.  I find that the lack of communication (or miscommunication) regarding the applicant’s recent trip to Pakistan was due solely to the applicant’s lack of respectful communication with the respondent.

The applicant should have known better and should have acted in a more mature manner to clarify the plans for the children to remain in the respondent’s care during his absence.  He should have provided the respondent with clear contact information so they could plan some phone calls between him and the children during his absence.  Sofia is just 8 years old and Ayesha is just 5 years old.  Neither of them is of the age or maturity to relay any messages to their parents, let alone a message about their father’s trip to Pakistan.  The children are further not equipped to take responsibility for a cell-phone and plan out long distance phone calls and messaging with their father while he was away.

To be crystal clear, NEITHER PARENT SHOULD EVER RELAY MESSAGES TO EACH OTHER THROUGH THE CHILDREN.

Based on the evidence filed and the above reasons, I find that there is sufficient evidence to satisfy the court that it is in the best interests of the children to make a temporary order granting the respondent decision making responsibility for both children.”

         Naeem v. Naeem, 2021 ONSC 2521 (CanLII) at 12-15

“The Respondent requests that the Applicant be required to provide disclosure regarding S.H.’s medical history and conditions. Under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, S.H.’s health information can only be disclosed with her consent. The Applicant cannot produce that information to the Respondent without S.H.’s written authorization.

Section 23(1) of the Personal Health Information Protection Act provides:

          Persons who may consent:

23(1) If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:

1. 1. 1. 1. 1. If the individual is capable of consenting to the collection, use or disclosure of the information,

i.     the individual, or

ii.     if the individual is at least 16 years of age, any person who is capable of consenting, whom the individual has authorized in writing to act on his or her behalf and who, if a natural person, is at least 16 years of age.”

            M.M.D. v. J.A.H., 2019 ONSC 2208 (CanLII) at 54-55

“Mr. Kraemer relies upon the case of Takhar v. Takhar, 2009 CarswellOnt 8172 to submit that since success has been divided, there should be no costs.  I prefer to rely upon Thompson v. Drummond, 2018 ONSC 4762 where Chappell J. said that the determination of success is not a simple mathematical exercise: “Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication…”.

         Kraemer v. Kraemer, 2019 ONSC 2072 (CanLII) at 6

“The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. However, the Divorce Act’s previous reference, in the heading to the relevant section, to “maximum” contact has been removed. However, the operative terms in the section remain the same.

Whether “as much contact as possible” or “maximum”, the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.

The present provision, s. 16(6) states:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

The previous provision stated:

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court’s failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child’s best interests.

Despite the changed wording of the heading and any potential implications, it remains necessary for any court making a parenting decision to avert to the s. 16(6) principle.”

         Phillips v. Phillips, 2021 ONSC 2480 (CanLII) at 49-54