Month: July 2022

“The principle of non-refoulement – a principle that forbids a country from returning an asylum seeker to a country in which they would likely be in danger of persecution – has been considered the cornerstone of international refugee protection. Canada has implemented the principle of non-refoulement in s. 115(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides:

115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Canada has ratified both the 1951 Refugee Convention and the Protocol relating to the Status of Refugees. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 72, the Supreme Court explained that “the Refugee Convention . . . expresses a ‘profound concern for refugees’ and its principal purpose is to ‘assure refugees the widest possible exercise of … fundamental rights and freedoms’”.

As submitted by CARL and UNHCR, the principle of non-refoulement applies not only to recognized refugees, but also to asylum seekers whose status has not yet been determined. Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers.

If, under the CLRA, a child is ordered returned to a place from which asylum is sought, the child’s rights to asylum are lost. A person is not permitted to continue a refugee claim once in their home country. Nor is the person entitled to make a second claim should the person return to Canada: Immigration and Refugee Protection Act, at ss. 96 and 101(1)(c)).

Further, art. 22 of the Convention on the Rights of the Child provides:

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

I adopt the reasoning of the High Court of Justice of England and Wales in F.E. v. Y.E., [2017] EWHC 2165 (Fam), which held at para. 17:

Approaching the matter from first principles I have no hesitation in concluding that where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending. Such an order would place this country in direct breach of the principle of non-refoulement. It is impossible to conceive that the framers of the 1980 or 1996 Hague Conventions could have intended that orders of an interim procedural nature could be made thereunder in direct conflict with that key principle. [Emphasis added.]

This same reasoning applies to a potential return order under s. 40(3) of the CLRA.

Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim.

The OCL’s submissions (and the mother’s alternate submission) go further to suggest that the entire application, including the mother’s request that Ontario exercise its jurisdiction to make custody and access orders for the children under s. 23 of the CLRA, should have been adjourned pending the refugee determination. I disagree for three reasons.

First, it is the s. 40(3) return order that would engage the non-refoulement principles, not the s. 23 analysis. Section 40(3) empowers the court to make a return order in extra-provincial matters. The section reads:

40.    Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1.    Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2.   Stay the application subject to,

i.    the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii.    such other conditions as the court considers appropriate.

3.    Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

Section 40 confers broad powers on the court and unlike the terms of the Hague Convention, does not require a return of the child to his or her habitual residence absent engagement of the harm exception.

A return order must not be made under s. 40(3) in the face of a pending refugee claim. This is consistent with the submissions of Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of the removal order under s. 40(3) that extinguishes the refugee claim. (I would leave to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim).”

         M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII) at 61-72

“The appellant is correct in pointing out that the ranges generated by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) formulas are the presumptive starting point for awarding support: McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 24; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106. While not binding, the SSAGs should not be lightly departed from: Slongo, at para. 105. Any departure requires adequate explanation: McKinnon, at para. 24. That being said, while the SSAGs formula offers a valuable tool in assessing a reasonable amount of spousal support, there are complicating factors that must be considered: Gray v. Gray, 2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.

Where, in my view, the appellant’s position errs is in equating the principled guidance offered in the SSAGs as a whole with the values generated by the short-hand formulas. Those formulas are intended to be used as tools only and, according to the SSAGs themselves, cannot be applied automatically in every case.

Re-partnering in particular is a circumstance that the SSAGs suggest, at s. 14.7, requires case-by-case decision-making:

Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually – faster or slower, depending upon the formula adopted – spousal support would be extinguished. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.

Re-partnering is also specifically contemplated by the SSAGs as a reason to revisit entitlement to support and consider terminating it. On the topic of re-partnering, the SSAGs state at §13.8:

Entitlement may then be revisited for any number of reasons – the recipient finding employment, the recipient’s remarriage or re-partnering, the payor’s retirement or loss of employment, etc. – and support may be terminated if entitlement has ceased.

Section 16 the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated.” This depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”

         Politis v. Politis, 2021 ONCA 541 (CanLII) at 28-32

“Sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common.  A joint tenant has a prima facie right to an order for partition and sale unless the joint tenant opposing the sale can establish that the other party is seeking to do so for malicious, vexatious or oppressive reasons.

In Marchese v. Marchese, 2019 ONCA 116, the appellant wife argued that the trial judge erred in ordering the sale of the parties’ matrimonial home.  The Court of Appeal disagreed, stating at para. 5:

As the trial judge correctly stated, the respondent had a prima facie right to an order for the partition and sale of the matrimonial home.  As a result, the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself.  The trial judge found that the appellant did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.

The respondent argues that that decision relates to an order made following a trial.  He relies on the decision in Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656, where Osborne J.A. speaking for the court states, at para. 26:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders.  In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate.  Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.).  In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

The respondent now seeks an order of exclusive possession of the home to challenge the motion brought by the applicant seeking the partition and sale of the home.

Martin v. Martin was considered in Hutchison-Perry v. Perry, 2019 ONSC 4381.  In that decision, at para. 37, the court says:

Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”).  In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3;  Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

A helpful summary of the relevant legal principles was reviwed by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16.  Below are some of those principles which are applicable in the circumstances of this case:

…

k.    More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.  Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households.   Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.    The court must consider the impact of a proposed sale on children or a vulnerable spouse – including the emotional impact, and the fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered.  As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.    Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.  Fernandes v Darrigo, 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.  Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).

n.    Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage.  The availability of a trial within a short period might reduce the pressure for an immediate sale.  Goldman v. Kudeyla, 2011 ONSC 2718 (SCJ).

o.    On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.    The stage of a child’s academic progress might also be relevant.  Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school.  On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.    But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale.  A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient.  The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.    A pending equalization claim may also be relevant.  The court cannot compel one joint tenant to sell to the other.  Martin v. Martin, 1992 CanLII 7402 (ON CA).  Nor can it give either joint tenant a right of first refusal.  Dibattista v. Menecola, 1990 CanLII 6888 (ON CA).  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home.  If a sufficiently particularized proposal seems viable – and especially if it would benefit a child – sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (SCJ).

s.    The court must consider and attempt to guard against potential prejudice.  Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?”

         Lalonde v. Agha, 2021 ONSC 5223 (CanLII) at 20-25

“”Consideration” in law is a contractual concept. It is the value that flows from a promisee to a promisor as a result of a bargain. There can be no consideration, however, when there has been no bargain or — to put it another way — consideration cannot flow from a promisee who does not know he or she is negotiating, much less passing value to a promisor in an exchange he or she doesn’t know exists.”

         McNamee v. McNamee, 2011 ONCA 533 (CanLII) at 29

“In Holder v. Wray, 2018 ONSC 6133, Emery J. reviewed a number of cases dealing with the question of whether a court should hear a motion to strike inadmissible paragraphs from an affidavit in advance of the main application or whether the admissibility of affidavit evidence is a question best left to the court that hears the application. He concluded, at para. 40:

An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation.  The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary.  Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances.  One “special reason” to make such an order in advance of the main hearing would be where the affidavit at issue is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party.”  See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death, 2007 CanLII 31756.

Emery J. adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion.

Where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the question to the court hearing the application because relevance can often only be assessed in the context of the application as a whole. The judge who hears the application on its merits is usually best situated to make that determination.

There are other cases, such as those described by Emery J., where screening inadmissible evidence at a preliminary stage will result in a more efficient use of parties’ and the court’s time and resources. For example, affidavits often contain inadmissible legal argument, opinions or comments on the legal position of the opposing party. “Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out”: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at para. 27. Permitting such inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.

In this regard, I adopt the following statement of the Divisional Court in Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, at paras. 7 and 8, which indicates a preference for having the record determined at a preliminary stage:

We are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058 (Div. Ct.), If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.

To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.

If the inadmissible evidence accounts for one or two isolated paragraphs in an affidavit, it may be more efficient to wait and have the issue of admissibility determined by the court hearing the case on its merits. In cases in which the affidavit is replete with inadmissible paragraphs, it may be fairer and more efficient to have the questions of admissibility determined in advance.

The question of whether a motion to strike paragraphs from an affidavit should proceed as an interlocutory motion or at the same time as the primary motion was also considered by Perell J. in Gutierrez. After reviewing a number of cases that canvassed the advantages and disadvantages of each procedure, Perell J. summarized the law at para. 35:

By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.”

         Hunt v. Stassen, 2019 ONSC 4466 (CanLII) at 8-14

“Having considered the circumstances, the Court is of the view that family mediation and arbitration as agreed upon by the parties and accordingly ordered by Justice Kershman should prevail over a return before the Court as proposed by the Applicant.

To be clear, the Court is very mindful of the fact that the “Dispute Resolution” clause in this matter is not a valid arbitration agreement. There is no question that it does not contain the required standard provisions set out in the Family Arbitration Regulation 134/07. However, what is clear is that the parties consented to the terms set out in the said clause which unequivocally reveal a common intent to resolve future disputes through the mediation/arbitration process. The wording makes mediation and arbitration mandatory. It states:

−   “If the parties Disagree about the parenting, they shall first try to resolve the dispute…”

−  “If the parties are unable to resolve the dispute through negotiation and/or mediation within 30 days… they shall arbitrate the issue…”

It is noted that both parties entered into comprehensive Minutes of Settlement being represented by counsel. These Minutes resolved all the issues and formed the basis for Justice Kershman’s final orders.

The parties’ common intent for the resolution of future disputes clearly falls within the definition of “secondary arbitration” found under section 59.7(2) of the Family Law Act:

Sec. 59.7(2): In this section, “secondary arbitration” means family arbitration that is conducted in accordance with the separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.

The Court agrees and adopts Justice Gray’s analysis found at paragraph 58 of Lopatowski v. Lopatowski, 2018 ONSC 824:

[58] In this case, the parties had entered into a clear agreement to the use of a parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities could be required, including statutory formalities. At the outset, when they made their agreement, if either party was concerned about whether something in a potential parenting coordinator agreement might be an impediment, one might have expected experienced counsel to raise it, or at least see a draft parenting coordinator agreement before executing the Minutes of Settlement. Similarly, if either party thought any of the statutory formalities were in issue, one might have expected counsel to raise it.

The essence of the Court’s decision is that the Applicant is bound by the terms of Justice Kershman’s order which are based on Minutes of Settlement to take steps necessary to make the order operative. This obligation is for him as well as the Respondent to enter into a formal and secondary arbitration agreement with the required standard provisions set out in the Family Arbitration Regulation 134/07. The Court must have the power to require parties subject of a court order to live up to their obligations.

The Court’s finding as to the parties’ intent is reinforced by the fact that they both participated in two mediation sessions as set out in the “Dispute Resolution” clause. The Applicant then refused to participate in the arbitration phase. In the absence of a valid “secondary arbitration” agreement, he was not obliged to participate. However, this does not relieve him to follow through with a valid agreement.

The Applicant’s obligation to follow through with “secondary arbitration” and enter into a valid agreement to that effect per Justice Kershman’s final orders, finds support in the Ontario Court of Appeal’s decisions in Geropoulos v. Geropoulos, 1982 CanLii 2020 and Owers v. Owers, 2009 ONC 296, which speak to the validity of family court orders that contravene formal statutory requirements. The Court notes the following analysis in Geropoulos:

In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them… no purpose is to be served in compelling agreements of this kind to comply with formalities of s. 54(1) and, if not, permitting parties to withdraw at will from compromises properly entered into by their legal representatives before trial of their action or … compromises concluded even during the trial of an action…”

Moncur v. Plante, 2021 ONSC 5164 (CanLII) at 17-24

“The considerations for appointing amicus in a family law case (other than a child protection case) were recently articulated by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, 2019 ONCA 1023.  The Court applied the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 to the family law context.  The Court said the following:

(a)The appointment of amicus is “exceptional” or “rare”.  Trial judges routinely resolve family law disputes without counsel on one or even both sides.  Self-representation, on its own, is an insufficient reason to appoint amicus;

(b) Trial judges must consider whether they can personally provide sufficient guidance to an unrepresented party, in the circumstances of the case, to permit a fair and orderly trial;

(c) The Court should also consider the availability of alternatives to appointing amicus.  These might include the availability of legal aid or appointing the Children’s Lawyer in a case involving a child.   But the Court may also balance against these potential alternatives, how invoking them might create more delay;

(d) Amicus may be appointed in rare or exceptional circumstances, when a judge requires assistance to ensure “the orderly conduct of proceedings”, and “the availability of relevant submissions”;

(e) A party has a right to self-represent.  Nevertheless, amicus might be warranted where the self-represented party is “ungovernable or contumelious”, where the party refuses to participate or disrupts trial proceedings, or where the party is adamant about conducting the case personally but is “hopelessly incompetent to do so, risking real injustice”;

(f) The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case.  The stakes must be high enough to warrant amicus;

(g) Amicus may assist in the presentation of evidence, but cannot control a party’s litigation strategy;

(h) “Very rarely”, amicus may mirror the duties of traditional counsel;

(i) However it is defined, the role of amicus must be clear, detailed and precise.  During the trial, the Court must monitor the amicus, to ensure that he or she stays on course and remains within the limits of the role;

(j)  The role may change or be refined as circumstances change during trial;

(k) Once appointed, the amicus is bound by a duty of loyalty and integrity to the Court, not to any of the parties to the proceedings; and

(l)  A party may not discharge amicus; only the Court may do so.”

W.A.C. v. C.A.F., 2021 ONSC 5140 (CanLII) at 20

“The Respondent submits that the statutory threshold for converting the Final Arbitration Awards into Court Orders in this case has been met.

The Respondent relies on the Arbitration Act, 1991 S.O. 1991, C.17, which confirms the binding nature of Final Arbitration Awards. Section 37 of the Arbitration Act provides that, “An award binds the parties, unless it is set aside or varied under section 45 or 46… .”

Section 59.8(2) of the Family Law Act, R.S.O. 1990, c. F.3 (the “Family Law Act”), and Rule 32.1(2) of the Family Law Rules, R.S.O. 1990, c. C. 43, provides that a party entitled to enforcement of an arbitration award shall make a motion in an existing proceeding rather than an application.

Section 59.8(4) of the Family Law Act further governs enforcement of family arbitrations awards and provides that:

(4)   If the family arbitration award satisfies the condition set out in subsection 59.6(1), the court shall make an order in the same terms as the award, unless:

(a)   the period for commencing an appeal or an application to set the award aside has not yet elapsed;

(b)   there is a pending appeal, application to set the award aside or application for a declaration of invalidity; or

(c)   the award has been set aside or the arbitration is the subject of a declaration of invalidity.

Section 59.8(5) of the Family Law Act provides that if clause (4)(a) or (b) above applies, the Court may make an order in the same terms as the award; or order, on such conditions as are just, that the enforcement of the award is stayed until the period has elapsed without an appeal or application being commenced or until the pending proceeding [i.e. an appeal or application to set aside or for a declaration of invalidity] is finally disposed of.

Paragraph 15.1 of the parties’ Arbitration Agreement with Mr. Grant confirms that the Final Arbitration Awards were intended to bind the parties within this statutory context:

Subject to the appeal remedies and rights to apply to set aside Mr. Grant’s Award under sections 45 and 46, respectively, of the Arbitration Act and subject to the other applicable provisions of the Arbitration Act, and the Family Law Act, Mr. Grant’s awards are binding on the parties. Any temporary, interim or final award may be incorporated into a consent order of the Ontario Superior Court of Justice. Either party may apply for the enforcement of any award under section 59.8(5) (a) of the Family Law Act.

The Respondent relies on this Court’s decision in DeCraemer v. Decraemer, 2012 ONSC 1182 (“DeCraemer”), in which the parties entered into minutes of settlement which formed the basis of a consent arbitration award. In that case, both parties sought enforcement of the minutes of settlement as a final settlement of all issues. Justice Bielby found that the parties’ agreement met the criteria set out in s. 59.6 of the Arbitration Act and was therefore enforceable. Justice Bielby stated the following (at paras. 34-35):

34      The Family Law Act, sections 59.6 and 59.8 allow for the enforcement of arbitration awards by the court. I find that the agreement met the criteria set out therein and that the agreement is enforceable. Accordingly, I can make an order in accordance with the award. An action remains outstanding and the matter was properly brought before the court by way of a motion.

35      If an order is made incorporating an arbitration award, it is subject to all the powers of the court: Thibodeau v. Thibodeau, 2009 CarswellOnt 2638 (Ont. S.C.J.). The court has the authority to make orders on the same terms as the award: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.).

In Thibodeau v. Thibodeau, 2011 ONCA 110, the Court of Appeal described the operation of s. 59.8 of the Family Law Act as a mechanism for enforcing arbitration awards, not an opportunity to update or vary such awards (at para. 72):

Section 59.8 is essentially an enforcement proceeding designed to turn a family arbitration award into a court order with the enforceability that goes with such an order. Respectfully, it is not an opportunity for the Superior Court judge hearing the application to tweak or alter the arbitration award to conform to what the judge may think the arbitrator should have done. Nor is it an opportunity to “correct” the award retroactively, the better to protect a payee spouse in the event of a subsequently occurring bankruptcy at the expense of other creditors.

The Respondent submits that the conditions in the Family Law Act and the Arbitration Act for the enforceability of the Final Arbitration Awards have been met in this case.

I agree.

The 2016 Arbitration Agreement, under which the Final Arbitration Awards were made, was executed by both parties, as well as Mr. Grant.

Each of the parties was represented by experienced senior legal counsel at the time of the Arbitration Agreement. The parties’ counsel signed Certificates of Independent Legal Advice.

Both parties also were represented when the terms of the Final Arbitration Awards were agreed upon.

Mr. Grant issued the Final Arbitration Award in writing and delivered the issued awards to the parties’ respective counsel.

The Awards were made on consent, and there has been no application to set the Awards aside or for a declaration of invalidity.

Justice Nelson dealt with a similar situation in A.S. v. A.S, 2005 CanLII 20817 (Ont. S.C.J), involving a request for a court order incorporating Ontario arbitration awards in circumstances where the child in question was no longer habitually resident in Ontario. Nelson J. held (at para. 13):

[13] I raised the question with counsel of whether jurisdiction could be lost by the arbitrators, notwithstanding the jurisdiction provisions of the separation agreements, as a result of the child no longer being habitually resident in Ontario. Counsel for the mother took the [sic] position that the jurisdiction of the arbitrators was lost due to this fact. It is my view however, that simply because [sic] an Israeli court has made an order in relation to this matter does not mean the jurisdiction of the arbitrators is lost. Under the present circumstances involving an access dispute, which was well within the contemplation of the parties when they signed the agreements, the arbitrators still have jurisdiction. On this motion I am simply deciding whether to incorporate the terms of an arbitration award into an order pursuant to the Arbitration Act. The contracts between the parties with respect to the issues of access, custody, and jurisdiction are valid and subsisting contracts. …

On Appeal, the Court of Appeal affirmed Justice Nelson’s conclusion that where the statutory conditions have been satisfied, it is justified for the Court to enforce an arbitration award as a Court Order (Shoval v. Shoval, 2006 CanLII 60347 (Ont. C.A.).

For similar reasons, I find that the Final Arbitration Awards in this case are enforceable as Court Orders.”

         Borschel v. Borschel, 2020 ONSC 4395 (CanLII) at 71-88

“The first case in Ontario to consider the effect of Balev on Hague decisions was Justice Pawagi’s decision in Andegiorgis v. Giorgis, 2018 ONCJ 965. In that case, the children had moved between Canada and Norway, but last lived in Norway with their parents.  The parties separated, and the mother left Norway for Toronto with the children. The father commenced a Hague Application for the return of the children to Norway.  The mother took the position that as a result of Balev, the Court must consider the circumstances of the children after the alleged wrongful removal and gave significant evidence that the children were now more connected to Canada and therefore Canada was their place of habitual residence.  Justice Pawagi stated at para. 34:

Father’s counsel submits, on the other hand, that, contrary to popular belief/fear, a close reading of Balev would demonstrate this is not what Balev has done. I agree with the father’s counsel’s interpretation that Balev has not actually eviscerated the Hague Convention. (emphasis added)

Justice Pawagi clarified the conflicting interpretations of Balev, highlighting that the Supreme Court of Canada decision is clear that when using the hybrid approach, “the judge must determine the focal point of the child’s life – the family and social environment in which its life has developed” – immediately prior to the removal or retention. Subsequent links are relevant only to the exception under Article 12.

At para. 39, Justice Pawagi offered further clarification:

The Supreme Court is clear that while the child’s circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The court is clear that the child’s circumstances following the wrongful removal or retention can only be considered when the Hague application is not brought within a year of the wrongful removal or retention.

Thus, in an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the state, but also the children’s circumstances, including connections they form, during the agreed-upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention.

…

Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed-upon temporary stay.

Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year).

In the case before me, I cannot consider the children’s connections to Ontario created after their wrongful retention in Ontario. In using the hybrid approach set out in Balev, I can still only consider the relevant factors in place prior to the children’s wrongful retention and not those formed since returning to Ontario.”

         Knight v. Gottesman, 2019 ONSC 4341 (CanLII) at 34-37

“Before I turn to consider the evidence and make my findings, it is prudent to review the legal principles that apply to the determination of a payor’s income for the purposes of determining child support. To begin with, the determination of income for the purposes of child support is governed by ss. 15 to 20 of the Federal Child Support Guidelines, SOR/97-175. Section 19 concerns the imputation of income and provides as follows:

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

The list is not exhaustive and it is not intended to circumscribe the court’s general discretion to impute income in other situations where it might be appropriate to do so. The only limitation on the court’s discretion rests with the requirement that there be some basis in the evidence for the amount that court chooses to impute: see Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1.

The leading case on this subject is Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). In that case, the Ontario Court of Appeal stated that imputing income is one method that the court may use to give effect to the joint and ongoing obligation of parents to support their children. To meet that obligation, parents must earn what they are capable of earning: at para. 32. If they fail to do so, they will be found to be intentionally under-employed. The applicable principles that emanate from Drygala, which were summarized recently in C.V. v. S.G., 2019 ONCJ 159, at para. 329, are the following:

1. 1. 1. 1. 1. One of the objectives of the Guidelines is to establish a fair amount of support for children to ensure they benefit from the financial means of both parents after separation;
            2.  It is not necessary to find a specific intent to evade child support obligations before income can be imputed. There is no requirement of bad faith;
            3. There is a duty to seek employment. A parent cannot avoid child support by a “self-induced” reduction of income; and
            4. If income is to be imputed, there must be a rational basis for the figure selected. The Court must consider what is reasonable in the circumstances, including the payor’s age, education, experience, skills, health, the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations and the hourly rate that the parent could reasonably be expected to obtain.

In Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, at para. 35, another leading case, the Newfoundland and Labrador Court of Appeal outlined eight general principles to consider in deciding whether to impute income:

1. 1. 1. 1. 1. The fundamental obligation of a parent to supporthis or her children takes precedence over the parent’s own interests and choices;
            2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to supporthis or her children;
            3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;
            4. Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control;
            5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances;
            6. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;
            7. A parent will not be excused from his or her child supportobligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and
            8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

Finally, the onus falls on the parent requesting that income be imputed to provide an evidentiary basis upon which a quantum can be imputed: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28; and Tillmanns v. Tillmanns, 2014 ONSC 6773, 53 R.F.L. (7th) 210, at para. 58.”

         Makeeva v. Makeev, 2019 ONSC 4334 (CanLII) at 62-66