Month: July 2022

“The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (s. 16(3) and s. 16.92).  This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52.  The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications.

The framework fails however, to state whether there must first be a change in circumstances before the provisions of s. 16.9 and s. 16.92 of the Divorce Act are to be considered.  A change in circumstances was established as the threshold question by the Supreme Court of Canada in Gordon v. Goertz.  Without a change in circumstances, the application for relocation would not be considered.

Section 17(5) of the Divorce Act provides that “before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order” and further, the court is required to take into consideration only the best interests of the child as determined by reference to that change.  S. 17(5.2) provides that the relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).

As relocation contemplates a significant geographic move away from the other parent, it will inevitably necessitate a variation to any existing order.  Therefore, the provisions of s. 16.9, s. 17(5) and s. 17(5.2) must be read together when considering a variation order to permit the relocation of a child.  The parent seeking the order does not need to demonstrate and the court does not need to satisfy itself there has been a change in the circumstances of the child beyond the proposed relocation.  This approach was also taken by Trousdale J. in Cote v. Parsons, 2021 ONSC 3719 when considering a recent Motion to Change to allow for the relocation of children.”

         Al Kowatli v. Berrwin, 2021 ONSC 4999 (CanLII) at 17-20

“Although pets are often viewed by people as members of their family, in law they are personal property much like other chattels, even when purchased during the course of a relationship. In that regard, they are an indivisible piece of property. The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner: Brown v. Larochelle, 2017 BCPC 115 (“Brown”), at para. 16; Henderson v. Henderson, 2016 SKQB 282 at paras. 23, 40; Warnica v. Gering, 2004 CanLII 50065 (“Warnica”), at para. 28, aff’d 2005 CanLII 30838, at para. 6.

The court has authority to determine ownership and to provide compensation for harm to property interests: King v. Mann, 2020 ONSC 108 (“King”), at para. 19. The court has no general discretion to redistribute property or alter ownership, but as with other kinds of property there may be issues as to whether a particular piece of property was made a gift or whether it is held in trust for another party, by way of constructive or resulting trust: King, at para. 20.

The traditional approach to determining who owns the dog focuses primarily on who purchased and paid for the dog and whether there are any discrete transactions where ownership changed: Baker v. Hamina, 2018 NLCA 15 (“Baker”), at para. 11; Warnica; Brown, at para. 16.

In the recent case Coates v. Dickson, 2021 ONSC 992, at para. 8, the court took a broader approach to ownership than who purchased the dog, and held that the court should take into account the following when determining the ownership of a dog:

a.    Whether the animal was owned or possessed by one of the people before the relationship began;

b.   Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

c.    The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

d.    Who purchased and/or raised the animal;

e.    Who exercised care and control of the animal;

f.    Who bore the burden of the care and comfort of the animal;

g.    Who paid for the expenses related to the animal’s upkeep;

h.    Whether at any point the animal was gifted by the original owner to the other person;

i.    What happened to the animal after the relationship between the litigants changed; and

j.    Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the animal.”

         Duboff v. Simpson, 2021 ONSC 4970 (CanLII) at 15-18

“The parties agree that as joint owners of McKendry Road they are both presumptively entitled to their share of the net proceeds from the sale.  They also agree that the onus is on the applicant as the moving party to show that a preservation order is necessary with respect to the respondent’s share to protect her interest.  They further agree that her request is injunctive relief (see section 101 of the Courts of Justice Act), namely a court order that commands or, in this case, prevents an action.

As to the law regarding interlocutory injunctions generally, RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.J. No. 17, at paragraphs 77 and 80 sets out the governing three-part American Cyanamid test [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396].  At the first stage, an applicant for interlocutory relief must demonstrate a serious question to be tried.  That is to be determined based on a common sense and an “extremely limited” review of the case on the merits.  A motions court judge should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, where the only issue is a simple question of law, or where there is no real conflict on the facts.  At the second stage the applicant must convince the court that he or she will suffer irreparable harm if the relief is not granted. The third branch of the test requires an assessment of the balance of inconvenience.

Notwithstanding that general test, injunctions seeking to preserve assets prior to trial have always been viewed as largely unavailable based on the principle that execution cannot be obtained before judgment, and judgment cannot be obtained before trial.  This is commonly referred to as the ‘general rule in Lister’ from Lister & Co. v. Stubbs, [1886-90] All E.R. 797: see Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2, at paragraphs 8 and 9.  The court will not grant an injunction to restrain a party from parting with his or her assets so that they may be preserved in case the other party’s claim succeeds (Aetna at para. 8).  That is what the applicant is seeking here.

There are a few long established exceptions to the Lister rule as described in Aetna at paragraph 9.  Some have since been codified.  For example, there is an exception now found in Rule 45 of the Rules of Civil Procedure to the effect that the rule does not apply where the moving party is seeking a restraint on the removal or dissipation of the very asset that is in question in the proceeding.  That is not the case here, as the unjust enrichment claim is with respect to a pension, not McKendry Road.  However, other exceptions do apply to the applicant’s claims here as set out below, with the question being whether the applicable tests have been met.

The first is that there is a codified exception found in section 40 of the Family Law Act that permits the court to make an order restraining the depletion of a spouse’s property that would impair or defeat a claim to support.  It is well established that the usual test for an interlocutory injunction as set out in RJR-MacDonald above applies, the first part being whether there is a serious issue to be tried: Taus v. Harry, 2016 ONSC 219 at para. 33; Price v. Price, 2016 ONSC 728 at paragraphs 5 and 6; Fraser v. Fraser, 2017 ONSC 3774 at para. 59; and Cummings v. Cummings, 2020 ONSC 3093 at para. 82.

The applicant also requests a preservation order related to her claim for unjust enrichment.  She argues that the same general interlocutory injunction test (‘serious issue to be tried’) applies.  However, she has not established a statutory exception. As an aside, there is an exception at section 12 of the Family Law Act with respect to preservation orders to secure equalization claims, for which the case law suggests that the same usual interlocutory injunction test applies, but we are not dealing with an equalization claim here.  The only available exception comes from the common law and is the relatively more recent Mareva injunction.  It is only available where the moving party maintains that there is a real risk that the remaining significant assets of the responding party are about to be removed or disposed of as to render nugatory any judgment obtained after trial (see Aetna at paragraphs 15 and 25).  Unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue (Aetna at para. 26).  It requires the moving party to demonstrate a strong prima facie case rather than a good arguable case (Aetna at para. 30).  The full test is set out in Chitel v. Rothbart 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540 (C.A.) at para. 43, 55 to 57, helpfully summarized by Justice Trimble in Karpacheva v. Karpacheva, 2018 ONSC 4563 at paragraphs 33 and 34 as follows (citations omitted):

[33]      In order for the court to impose a Mareva injunction the party seeking the injunction must satisfy the court of the following things:

a)   the plaintiff must also show that he or she has a strong prima faciecase;

b)    the plaintiff must make full and fair disclosure of all material matters within his or her knowledge;

c)     the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim, the amount thereof, and the points that could be fairly made against it by the defendant;

d)    the plaintiff must give the basis for believing that the defendant has assets in the jurisdiction;

e)     the plaintiff must give grounds for believing that there is a real risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded to him or her; and

f)      the plaintiff must give an undertaking as to damages.

The factors outlined above are guidelines for the Court to consider as opposed to rigid criteria each of which must be met before the Mareva will issue. The Court, under Section 101 of the Courts of Justice Act, should ask whether it is just and equitable that a Mareva should issue …

I note that some of those criteria are directed at the circumstances where the injunction is sought on an ex parte basis (ie. subparagraphs 33 (b) and (c)), which is not the case here.  They are in addition to the usual interlocutory injunction criteria requiring a finding of irreparable harm and a balance of convenience: see Cummings v. Cummings paragraph 67 citing Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67.

The Mareva injunction test has been applied recently in a number of family law cases, a few of which have already been noted: for example see Karpacheva v. Karpacheva, Laliberte v. Monteith, 2018 ONSC 7032, Hadaro v. Patter, 2019 ONSC 4574, and Cummings v. Cummings.”

         Boutin v. Loucitt, 2021 ONSC 5594 (CanLII) at 11-18

“The appellant submits that the relocation order should be set aside because: 1) the trial judge erred by determining the question of the children’s relocation to Lindsay before deciding the issue of custody contrary to this court’s decision in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 14; 2) the trial judge erred in his application of the law on relocation to the facts of this case; and 3) the trial proceeded in an unfair manner to the appellant whose adjournment and accommodation requests because of her disability went unheeded such that a new hearing is required.

We do not accept these submissions.

First, we do not read this court’s decision in Bjornson as establishing an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and, specifically, on the best interests of the children. Bjornson arose out of the particular circumstances of that case: the sequence in which the trial judge dealt with relocation and custody was criticized because it caused him to err – he did not make the depth of enquiry required in the circumstances and failed to give the evidence of the custodial parent the great respect or most serious consideration to which it was entitled.”

         Moreton v. Inthavixay, 2021 ONCA 501 (CanLII) at 7-9

“Subrule 24(2) of the Family Law Rules, O. Reg. 114/99. (“Family Law Rules”) sets out that in a child protection case there is no presumption that the successful party is entitled to a costs order.

The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations: see: Children’s Aid Society of Ottawa- Carleton v. S. 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945 (SCJ – Divisional Court).

Justice Chappel conducted a thorough review of the case law concerning costs claims against child protection agencies in Children’s Aid Society of Hamilton v. K.L., 2014 ONSC 3679 (CanLII), 2014 O.J. No. 2860  and set out the following principles:

a.    Child protection agencies do not enjoy immunity from a costs award.

b.    The starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

c.    The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

d.    The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.

e.    Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

f.    A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

g.    Important factors to consider in deciding whether costs against a Society are appropriate include the following:

i.     Has the Society conducted a thorough investigation of the issues in question?

ii.     Has the Society remained open minded about possible versions of relevant events?

iii.      Has the Society reassessed its position as more information became available?

iv.    Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

v.     In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.

A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children’s Aid Society of Brant v. D.M.C. and J.C., 1997 CanLII 9575 (ON CJ), [1997] O.J. No. 3145 (OCJ).

The lens through which the society’s conduct is viewed is that of the properly informed, reasonable person, considering the society’s conduct and the prejudice caused to the child or parent by that conduct: see: Catholic Children’s Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).

Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of Rule 24: see: Children’s Aid Society of Halton v. J.S., supra; Children’s Aid Society of Hamilton v. K.L., supra.”

Children’s Aid Society of Ottawa v. J.K., 2019 ONSC 4231 (CanLII) at 39-44

“The applicant believes that the children are being negatively influenced against him by the respondent, while the respondent maintains that she encourages the children to go, but that they adamantly refuse.

The court has authority, both under the Divorce Act and the Children’s Law Reform Act, to make an order for reconciliation counselling as an incident of a parenting order:  Leelaratna v. Leelaratna, 2018 ONSC 5983 (Ont. S.C.J.), paras. 45-46; and R.N. v. A.N., 2019 ONSC 163 (Ont. S.C.J.).

Those cases dealt with the Divorce Act and the Children’s Law Reform Act prior to the recent amendments.  However, in relation to the Children’s Law Reform Act, the relevant portions of s. 28(1)(b) and (c), as considered in Leelaratna, have not been affected in any material way by the amendments:  B.W.G. v. N.H.M., 2021 ONSC 2727 (Ont. S.C.J.), paras. 24-25.

In relation to the Divorce Act, prior to the recent amendments, Leelaratna relied on s. 16(6), which provided that the court “may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just” in relation to a custody or access order (para. 45).

Currently, s. 16.1(5) of the Divorce Act contains wording that, while not identical, is similar and would authorize an order for reconciliation counselling as an incident of a parenting order:

16.1(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.  [my emphasis]

In addition, s. 16.1(4)(d) includes as follows in relation to a parenting order:

16.1(4) The court may, in the order,

…

(d) provide for any other matter that the court considers appropriate.  [my emphasis]

I find that an order for reconciliation therapy in the current circumstances can be regarded as a method of enforcing an existing order.

The Divorce Act amendments support, specifically, a family dispute resolution process.

Section 2(1) of the Divorce Act contains the following definition of “family dispute resolution process”:

a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law

The Divorce Act imposes on the parties the following duties in ss. 7.2 and 7.3:

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Family dispute resolution process

7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

I am not able to accept the respondent’s primary submission.  This is not a time for more litigation including oral questioning.  It is a time to explore a solution through clinical intervention.”

         C.M.W.T. v. M.M.M., 2021 ONSC 4809 (CanLII) at 43-53

“The applicant deposes that the respondent’s vow not to leave her alone, and to continue staging online protests outside her home, make her fear from her safety and I.S.’s safety. As noted, she is also concerned about the ramifications for I.S. if he is publicly associated with the respondent’s protest efforts against the government’s and public health authorities’ response to the pandemic.

The court can make an interim or final restraining order based on s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, or s. 35 CLRA. In either case, a restraining order may contain one or more of the following:

a.    An order restraining a party from directly or indirectly contacting or communicating with another party or any child in that other party’s lawful custody;

b.    An order restraining a party from coming within a specified distance of one or more locations.

c.    An order specifying exceptions to the provisions described in a) and b) above; and

d.    Any other provision that the court considers appropriate.

In order to grant a restraining order, the moving party must have reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody. It is enough if an applicant has a legitimate fear, but the fear must not be entirely subjective. The fears can be of a personal or subjective nature, but they must be related to a respondent’s actions or words: PF. v. S.F., 2011 ONSC 154, 196 ACWS (3d) 746, at para. 31.

Specifically, the applicant seeks an order that the respondent not contact her or come within 100 m of any place the applicant or I.S. are known to be or frequent, including, but not limited to her home and place of work, that he remove all social media postings regarding the applicant, I.S., or any issues in this litigation, and refrain from making new postings, and that he not make a new GoFundMe page and that he delete his existing GoFundMe page.

With respect to the social media postings, I note that courts have ordered parents to refrain from making social media posts about the other parent or children, and to remove any existing social media posts: E.H. v. O.K., 2018 ONCJ 412, at paras. 133-136. In E.H., Sherr J. found such an order to be appropriate, because the father’s social media posts were a breach of the child’s privacy and contrary to her best interests.

In my view, it is appropriate that a tailored restraining order be made with respect to the respondent’s social media to protect the privacy of the child, and to assure his and the applicant’s safety. While I am cognizant that the respondent himself has not threatened to physically harm the applicant, by inviting his followers to search for the applicant, the respondent has invited, at the very least, on line bullying of her. The comments on the respondent’s posts include some that are upsetting and others that are threatening. I accept that the applicant’s fear for her and I.S.’s safety is reasonable. I therefore order:

a.    The respondent shall delete any social media posts (i) that refer to the issues in this litigation, or (ii) that denigrate the mother, or (iii) that refer to the mother, and/or the child, and the current pandemic. This includes the two Facebook livestreams from May 20 and 27, 2020, which, if still available in any form on his Facebook account, shall be deleted;

b.    The respondent shall refrain from creating any new social media posts (i) that refer to the issues in this litigation, or (ii) that denigrate the mother, or (iii) that refer to the mother, and/or the child and the current pandemic.”

            A.T. v. V.S., 2020 ONSC 4198 (CanLII) at 45-50

“Parallel parenting is a parenting arrangement that has evolved, in order to address high conflict cases where neither a sole decision-making order to one parent nor a cooperative joint decision-making order will meet a child’s best interests. Parallel parenting orders generally take one of two different forms. A “divided parallel parenting” regime, in which each parent is given separate areas of parental decision-making authority, independent of the other parent, or a “full parallel parenting” regime, in which parents are given the right to make major decisions regarding the child while the chid is with them without the consent of the other parent.

In V.K. v. T.S., Chappel, J. thoroughly reviewed the case law and set out the factors that the court should consider in determining whether a parallel parenting regime, rather than sole decision-making authority custody, was appropriate. at paragraph 96, as follows:

a.    “The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.”

b.    “The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.”

c.    “Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent [sic] and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate. [italics added]”

d.    “Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.”

e.    “The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.”

f.    “The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.”

In Batsinda v. Batsinda, Chappel, J. refers to a case, H. (K.) v. R. (T.K.), decided by Sherr, J. in which he adopted the above-noted factors and added the following further considerations:

a.    The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counselling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

b.    Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

c.    The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

d.    The family dynamics.  The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents’ conflict.”

         Chmielewski v. Gonzalez, 2021 ONSC 5019 (CanLII) at 212-214

“With recent legislative changes, our court system has taken pride in our enlightened terminology.

a.    We no longer use “custody” or “access” because those labels were regarded as provocative, polarizing and unhelpful to the resolution of family disputes.

b.    We promote more neutral and conciliatory labels like “shared parenting” because they promote mutual respect and parental involvement; and because children are better off when both parents are actively and beneficially involved in all aspects of their lives.

But just as outdated labels are to be avoided because they conveyed the wrong message – we have to ensure that our currently-favoured parenting designations convey the right message.

a.    Shared parenting is not a prize. Or a reward. Or a badge of entitlement.

b.    It’s not about rights.  It’s about responsibilities.

c.    It’s not an acknowledgement of pastparenting.  It’s a commitment about future parenting.

d.    It’s not about soothing adult egos (although that’s a helpful side-benefit).

e.    It’s about creating precious opportunities.

f.    Opportunities for both parents to maintain a meaningful role in their children’s lives.  To make enlightened and important decisions in a mature, selfless, cooperative, child-focused manner.

g.    Opportunities for children to have the best of both worlds.  To benefit from the love, guidance, involvement, insight, culture and commitment of each parent.  Even if the parents aren’t together.  Even if the parents don’t like each other anymore.

h.    Opportunities for parents to solveproblems.

i.    But not opportunities for incessant argument and obstruction.

Shared parenting may be desirable or aspirational.  But it’s not automatic.  And it’s definitely not to be taken for granted.

a.    In some families it’s inevitable.

b.    In some families it’s achievable.

c.    In some families it’s worth a try.

But as this court stated in Izyuk v Bilousov 2011 ONSC 6451 (SCJ) (prior to the amended legislation):

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

Shared parenting:

a.    It’s not exactly “Use It or Lose It”.

b.    More like “Abuse It and Lose It”.”

          Rogers v. Porga, 2021 ONSC 4759 (CanLII) at 35-39

“This court in Gray (v. Rizzi, 2016 ONCA 152) clarified the approach to be followed when the threshold for a retroactive variation of support had been met. Specifically, at paras. 44- 54, the court made it abundantly clear that the four factors governing retroactive support orders identified in D.B.S., subject to exceptional circumstances, should be adapted to apply to applications to decrease support retroactively in cases like the present:

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

ii.     The conduct of the payor parent;

iii.     The circumstances of the child and;

iv.     Any hardship occasioned by a retroactive award.

Gray rejected the notion that D.B.S. and its factors for analysis are inapplicable in cases of arrears, at para. 51:

[A] payor who has let arrears accumulate has no claim to resist an increase in support on grounds of certainty and predictability. A delinquent payor cannot use the principle of predictability as a shield against paying the full amount of support to which his child is entitled.

…

In contrast, where a payor seeks a retroactive decrease in support, the S. (D.B.) factors — such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support — remain relevant. [Emphasis added.]

At paras. 45 and 61-62, the court also endorsed the general rules from D.B.S. that the date of effective notice should serve as the date to which the award should be retroactive and that it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given (“the three-year rule”).  While D.B.S. framed these rules in the context of giving certainty and predictability to the payor parent when the change is an increase sought by the recipient parent, Gray clarified that the same underlying principles apply when the change is sought by the payor parent:  see D.B.S., at para. 123; Gray, at para. 61.”

         Colucci v. Colucci, 2019 ONCA 561 (CanLII) at 16-18