Month: September 2022

 “I am particularly troubled by the use of Orders granted on an ex parte basis by this Court to perpetuate the harassment of Sepideh.  The processes of the Court should not be abused.  The defendants reference the common law implied undertaking rule, which requires that a party that has received information under compulsion of a Court order or during discovery is deemed to give the Court an undertaking that the information will not be used for any collateral or ulterior purpose unrelated to the litigation.  In this regard, the Federal Court in Merck & Co. v. Apotex Inc. 1996 CanLII 4019 (FC), [1996] 2 F.C. 223 stated (at pp. 20-21):

In my opinion, if an undertaking is implied in regard to information produced in discovery, as is now recognized, the same may surely be said of information received by one party from another under compulsion of the court’s order.  The implied undertaking may be enforced by a court order to restrain release of information in collateral proceedings or activities (…).  The breach of the implied undertaking may constitute contempt of court (…).

The limits of that undertaking are that the information not be used for a collateral or ulterior purpose.  That means for any purpose other than those concerned with the proceedings in which the information is produced (…). [citations omitted]

Maison Prive v. Moazzani, 2020 ONSC 8199 (CanLII) at 66

“There is no dispute that the court must make this determination based on the best interests of the child, taking into account the various factors set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990 c. C12, (CLRA).

Often in these cases, “best interest” is determined by maintaining the status quo: Ursic v. Ursic, 2006 CanLII 18349 (ONCA), at para. 32; De Matos v. De Matos, 2015 ONSC 4554, at para. 18; Pancel v. Henri, 2012 ONSC 546, at paras. 25 and 26; McPhail v. McPhail, 2018 ONSC 735, at para. 15.

The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings if there are, as in this case, conflicting affidavits: R.C. v. L.C., 2021 ONSC 1963, at para. 62.

The courts have also determined that a party cannot unilaterally alter the status quo by denying the other party parenting time without a court order or formal agreement. The status quo does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order. Thus, the status quo in this case must be determined by examining the status quo before separation:  McPhail, at para. 17 and cases cited therein; Rifai v. Green, 2014 ONSC 1377, at para. 25.”

            C.C. v. I.C., 2021 ONSC 6471 (CanLII) at 46-49

“In L.M.P. v. M.D.P, 2021 ONSC 3577 (Ont. Sup. Ct.) at para. 58, MacPherson J. reviewed the case law and concluded that the considerations and questions to take into account by the Court when determining whether to exercise its discretion to attribute pre-tax corporate income can be condensed as follows:

a.   does the Respondent have control over dividend declarations?

b.   is there a business reason for retaining the earnings?

c.   should the court exercise its discretion and attribute pre-tax corporate income?”

Christodoulou v. Christodoulou, 2021 ONSC 6538 (CanLII) at 58

“The father shared his conviction with A.R. that there is “a rule” that at 16 she can make her own decisions and orders of custody will not be enforced against her. The language used by them in this regard mirror one another. The father’s entire position during the motion rested on this “rule”.

The case law does not support his position. At the age of 16 a child can withdraw from parental control. There are also certain rights and autonomy afforded to a 16-year old child under the law. A summary of some of these rights can be found in L. (N.) v. M. (R.R.), 2016 ONCA 915 (Ont. C.A.) (“N.L.”), starting at paragraph 112. That does not mean that every 16-year old can dictate where they live or ignore court orders with respect to custody and access, or that every sixteen-year old can withdraw from parental control.”

         Reid v. Reid, 2019 ONSC 5621 (CanLII) at 28-29

“This is set out in s.94(2) CYFSA. It is a two part test. The society has the onus to meet the test based on evidence. The evidence, at this stage, is whatever the court considers credible and trustworthy in the circumstances. The test is not terribly onerous as all it requires is reasonable grounds to exist. Moreover, the standard of proof is the balance of probabilities. The court is given four options, one of which it must choose when a case is adjourned. It is almost invariably adjourned as no one is ever ready for a hearing to determine if a child is in need of protection. The four choices are set out in section 94(2):

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, 

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or 

(d)     remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

The actual wording of the test is set out in s.94(4)

S.94 (4)  The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Clauses (a) and (b) are non-removal orders. They do not remove the children from whoever had charge before the society’s intervention. Clauses (c) and (d) are removal orders and they do remove the children from the person who had charge of them. Where children are apprehended, this represents the society’s intervention. They are clearly removed from their former caregiver and custodian.

The first step in a temporary care and custody determination is always to decide who had charge of the children. In this case it was their mother.

The phrasing of the first branch of the test in s.94(4) makes it clear that all that is required of a society is to satisfy the court of the existence of “reasonable grounds” to believe that the child is likely to suffer harm. What is unsaid but understood is that the risk of the likelihood of such harm will exist if the child remains with the person who has charge. The second branch of the test is again the existence of “reasonable grounds” to believe that the child cannot be adequately protected by an order that returns the child to the person who had charge before the child was removed.

In terms of the options available to the court, clause (c) of s.94(2), to which I refer as the placement with ‘kin’ clause, is supported by s.94 (5) CYFSA:

S.94 (5)  Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community

Section 94(5) not only supports clause (c) of s. 94(2), it prohibits the court from making an order placing the child in the temporary care and custody of a society until it has considered whether it is in the child’s best interests to place the child with a relative of the child or a member of the child’s extended family or community. Persons who fall into these categories I consider to be ‘kin’ even though this word is nowhere found in the CYFSA statute. It is simply for convenience and ease of reference. This imposes on the court, where it decides that it cannot make a non-removal order, an obligation to look at kin of the child as persons to whom it may entrust temporary care and custody. This section 94(5) makes it crystal clear to this court that an order for temporary care and custody to a society is the last resort, to be made only if an order placing with kin is not appropriate. Moreover, identification of kin as candidates for temporary care and custody, while preferable, is not required. The court has to consider all of the evidence and, I suggest, might even be tasked, where information in the evidence is scarce or non-existent, with asking who the child’s relatives and extended family or community members are, and whether any may be interested in accepting temporary care and custody.

The CYFSA has implemented a number of changes some of which have been emphasized in the statute. Among these are canvassing the views and wishes of a child where decisions are being made or services are being provided to that child. In particular, in the context of temporary care and custody decisions, the court is not only mandated to consider, but in the case of views and wishes of a child, is prohibited from making a temporary care and custody order until it takes such views and wishes into consideration, if they are ascertainable, and until it gives them “due weight in accordance with the child’s age and maturity”.”

Nogdawindamin Family and Community Services v. S.S., 2019 ONCJ 732 (CanLII) at 9-16

“Rule 12(5) of the Family Law Rules provides that if “it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.”

Rule 12 of the Family Law Rules is analogous to Rule 6 in the Rules of Civil Procedure. Both rules consider combining proceedings. Rule 6.01(1) of the Rules of Civil Procedure provides that where “two or more proceedings are pending in the court and it appears to the court that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or the proceedings be consolidated, or heard at the same time.”

The rationale of Rule 12 and Rule 6 is to avoid the risk of inconsistent rulings if different Justices deal with the same or similar issues in different proceedings. Further, the Family Court judges are judges of the Superior Court and have jurisdiction to hear civil matters. So long as the proceedings are related, there is no jurisdictional issue to trying a family law application and a civil action together.

In deciding whether to consolidate proceedings, the court will consider the following non-exhaustive factors:

a.   The extent to which the issues in each action are interwoven;

b.   Whether there is a risk of inconsistent findings or judgments if the actions are not joined;

c.   Whether there is expected to be a significant overlap of evidence or of witnesses;

d.   Whether the issues in one action are relatively straightforward compared to the complexity of the other action;

e.    Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;

f.   The litigation status of each action;

g.   Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.

Canadian National Railway v. Holmes, 2011 ONSC 4837, at para 44

In Malkov v. Stovichek-Malkov, 2015 ONSC 4836, at para 15, the court applied these factors in considering whether to combine a support and custody proceeding with a proceeding about ownership of the matrimonial home. The Court found that it was in the interests of justice to combine the cases – “the balance of convenience favours an order to combine” – based on the following:

(a) the dispute over ownership of the home raised the same issue as the support and custody issue, with the same evidence to be led;

(b) there was a risk of inconsistent judgements;

(c) though the family law case is more complex because it had more issues, the question of ownership of the home is an isolated issue;

(d) having two proceedings may frustrate the goal of having family law disputes resolved in a timely manner (this is important when custody, access, and support are involved);

(e) both proceedings in beginning stages; and

(f) with two proceedings, there are duplicate legal fees.”

         Dixon v. Lindsay, 2021 ONSC 6432 (CanLII) at 15-19

“This appeal concerns the division of pension payments for family law purposes. The central issue on appeal is this:

Where a retired member spouse’s pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse’s estate for the balance of the retired member spouse’s life?

On a motion to decide a question of law under Rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99 (“FLR”), the motion judge answered this question in the negative.  He concluded that the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”) specifically precludes a deceased non-member spouse’s share of a retired member’s pension payments from continuing to the non-member’s estate after the non-member’s death. In other words, the motion judge concluded that the death of the non-member spouse necessarily results in their share of the pension payment reverting back to the member spouse.

Respectfully, I disagree. There is nothing in the PBA, the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), or the Family Law Matters, O. Reg. 287/11 (“Regulation”) (one of the regulations under the PBA) that precludes the parties from agreeing to, a court from ordering, or an arbitrator from awarding a continuation of shared pension payments to the deceased non-member’s estate for the balance of the member spouse’s life. Indeed, when these provisions are read together as a cohesive unit, they leave open the possibility of proceeding in exactly this way.”

         Meloche v. Meloche, 2021 ONCA 460 (CanLII) at 1-3

“The normal retirement age is 65 years of age. The law is well settled that a spouse ought not be able to use an early retirement package to defeat a right to support: see Hurst v. Hurst (2008), 2008 CanLII 49159 (ON SC), 58 R.F.L. (6th) 377 (S.C.), at para. 35.”

            DiStefano v. DiStefano, 2020 ONSC 5688 (CanLII) at 55

“The children of the marriage were born on February 22, 1970 and March 8, 1972. They ceased to be children of the marriage when they completed their post secondary education in April 1997 and June 1998. The motion, which was brought only under the Divorce Act, sought “by Motion to Change a lump sum payment of at least $275,000.00 for retroactive adult child support and child support”. In the alternative the motion sought “by Motion to Change, periodic monthly child support in accordance with the 2011 Child Support Guidelines” for at least $194,670.20 in principle and pre-judgment interest.

The motion judge disposed of the motion by resorting to rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99, which allows the court to decide a question of law before trial if deciding the question may dispose of all or part of the case. The motion judge decided that under s. 17 of the Divorce Act, an application cannot be brought to claim or vary a support order against a decedent’s estate if the original order is silent on whether that order binds the estate.

In reaching this conclusion the motion judge relied on this court’s decision in Katz v. Katz, 2014 ONCA 606, in which the court said at para. 72:

[I]t has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary.

We do not accept the appellant’s submission that this statement does not apply because the application related strictly to the payor’s lifetime on a retroactive basis. As the court in Katz observed, the Divorce Act does not contain a provision similar to s. 34(4) of the Family Law Act, R.S.O. 1990, c. F.3, which stipulates that an order for support binds the estate of the person having the support obligation. Yet, this application was brought against the trustee of the payor’s estate, as it had to be because no legal proceeding could be brought against the deceased payor. As there was no order binding the estate, there was no subsisting order that could be varied to bind the estate. The appellant did not make a claim for alleged arrears of support that arose during the life of the payor, as she might still, her application sought only an application to vary the 1978 order. Nor does anything in these reasons prevent her from seeking relief under the Family Law Act, if available.

The motion judge correctly decided that an application under s. 17(1) of the Divorce Act to retroactively change child support cannot be brought after the death of the payor. The appeal is dismissed. Costs are fixed in favour of the respondent in the amount of $3000.00 all-inclusive.”

Blacklock v. Tkacz, 2021 ONCA 630 (CanLII) at 3-7

“There is no statutory basis on which a court may order one party to pay the other a sum as an advance on his or her claim for an equalization payment: Stork v. Stork, 2015 ONSC 312 (CanLII).  In Zagdanski v. Zagdanski, (2001), 55 O.R. (3d) at p. 6 (Ont. S.C.) a partial equalization payment was advanced.  Despite doubt being expressed about the correctness of that decision, McGee J. in Stork identified at least seven times in Ontario that Zagdanski had been followed and noted that it had been cited with approval a further 11 times.  The Zagdanski factors are:

1. 1. 1. 1. 1.   There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount.
            2.   There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment.
            3.   There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action.
            4.    There may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.”

Testani v. Haughton, 2016 ONSC 5827 (CanLII) at 25