Month: September 2022

“In Richardson v. Richardson, 2019 ONCA 983, the majority of the Ontario Court of Appeal found that in making parenting decisions, the court is not limited by the positions that parties take before it or by the terms of their settlement.

In fact, even when presented with a settlement, the court has the authority to review and reject it if it fails to meet the best interests of the child.  That is because the court is required to determine any parenting issue before it based only on the child’s best interests. Of course, that remedy should be exercised with caution and rarely invoked. Mere disagreement with the agreed upon terms is not sufficient to set them aside. Any decision to set aside an agreement must consider the benefits to the children of a compromise resolution rather than a litigated one.  Further, the court must fully explain both the rejection of the parties’ proposed resolution and any reason that the judge did not inform the parties the concerns with their proposed resolution. In that way, the parties can attempt to address them.”

            Spadacini-Kelava v. Kelava, 2020 ONSC 5561 (CanLII) at 122-123

“The issue on this interim motion is whether to include the respondent’s CERB income ($14,000) and/or RRSP income  ($10,000) in his 2020 income for the purpose of determining his child support obligations.

There is ample authority for the inclusion of the CERB income for the purpose of determining the respondent’s child support obligations.  See, for example, Dalgleish v. Spencer, 2021 ONSC 1708, at paras. 24 and 33; T.M.R. v. J.K.S., 2021 ONCJ 182, at para. 54.  The CERB was intended to replace employment income lost because of the COVID-19 pandemic.  I see no reason to exclude the respondent’s CERB income when determining his child support obligations for 2020.

At para. 29 of its decision in Liu v. Huang, 2020 ONCA 450, the Court of Appeal for Ontario reviewed the law with respect to RRSP income in the context of determining child support obligations: “RRSP income received in a particular year is presumptively part of a spouse’s income.  Section 17 of the Guidelines permits a court to depart from the income determination made under s. 16 where it is of the opinion that this would not be the fairest determination of income.  However, this exclusion is not mandatory and remains within a court’s discretion.””

         Ladouceur v. Parent, 2021 ONSC 6112 (CanLII) at 35-37

“Section 40 falls within Part III of the CLRA, which deals with decision-making responsibility, parenting time, contact, and guardianship, the first three items being the new statutory labels for what used to be called custody and access. The purposes of Part III are set out in CLRA s. 19 which, to repeat what is set out in para. 42 above, states:

19 The purposes of this Part are,

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.

Part III legislates with respect to a broad range of issues relating to the making of parenting and contact orders. Some of its provisions address whether an Ontario court can or should exercise jurisdiction to make a parenting or contact order (ss. 22, 23, and 25). Others concern the making, enforcement, and variation of parenting or contact orders, including the statutory requirement only to take into account the best interests of the child when making a parenting or contact order (s. 24). Yet other sections deal with “extra-provincial matters”.

The provisions collected under the heading Decision-Making Responsibility, Parenting Time and Contact — Extra-Provincial Matters (ss. 40 to 46) provide two mechanisms by which to achieve the purposes enunciated in s. 19 – specifically, those of discouraging child abduction and refraining from exercising jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in a place other than Ontario with which the child has a closer connection.

The first mechanism is the incorporation of the provisions of the Hague Convention into the law of Ontario: CLRA, s. 46(2). Under the Hague Convention, where a child has been wrongfully removed from a contracting state and brought to Ontario by one parent, the other parent may apply for the return of the child to the contracting state: CLRA, s. 46(5); Hague Convention arts. 3, 12, 29. Where certain conditions are satisfied and certain exceptions do not apply, Article 12 requires a court to order forthwith the return of a child who has been wrongfully removed or retained.

The second mechanism involves CLRA s. 40 which states:

Interim powers of court

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. 1. 1. 1. 1. Make such interim parenting order or contact order 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 applies to both domestic and international situations: where a child has been wrongfully removed to Ontario from another jurisdiction in Canada and where a child has been wrongfully removed from a state that is not a contracting party to the Hague Convention and brought to Ontario.

In Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, leave to appeal refused, [2020] S.C.C.A. No. 193, this court observed, at paras. 34 and 69, that a court is able to exercise a broader range of discretionary powers under CLRA s. 40 than under the Hague Convention. CLRA s. 40(3) sets out one such power; it authorizes a court to order a party to return the child to such place as the court considers appropriate if the court is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario. Section 40(3) is the target of the mother’s constitutional challenges in this case.

The different procedures under the Hague Convention and provincial legislation, such as CLRA s. 40, for securing the return of a child wrongfully removed or retained operate independently of each other: Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at p. 603; Geliedan, at paras. 30-33. Nevertheless, as a practical matter, where the provisions of provincial legislation such as CLRA s. 40, are engaged, “[it] may not be improper to look at the Convention in determining the attitude that should be taken by the courts, since the legislature’s adoption of the Convention is indicative of the legislature’s judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence: Thomson, p. 603.”

         N. v. F., 2021 ONCA 614 (CanLII) at 114-121

“An interim support award is a temporary order only and inevitably imperfect. Cardoso v. Cardoso, 2013 ONSC 5092.  It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J.

The Spousal Support Advisory Guidelines are intended to apply to interim orders as well as final orders. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p. 15.

I adopt the following principles as set out by Vogelsang, J. in King v. King, 2016 ONSC 5264 (SCJ) at para. 11:

1. 1. 1. 1. 1.   On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
            2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
            3.   On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
            4.  The courts should not unduly emphasize any one of the statutory considerations above others;
            5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
            6.   Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
            7.    Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
            8.  Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

         Montoya v. Arroyo, 2019 ONSC 5335 (CanLII) at 2-4

“In concluding that the advances were by way of gift, the motion judge applied the correct legal test and considered the relevant factors. He began his inquiry with the presumption of resulting trust and then weighed all the evidence to determine the parents’ actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 5 and 44.

Here the motion judge considered factors listed as relevant in a number of cases concerning monies advanced by parents. These include the following factors identified in the context of a loan vs. gift analysis in Locke v. Locke, 2000 BCSC 1300 (CanLII), [2000] B.C.J. No. 1850 at para. 21, and Kuo v. Chu, 2008 BCSC 504 (CanLII) at para. 78, aff’d 2009 BCCA 405 (CanLII), 97 B.C.L.R. (4th) 203, at para. 9:

1. 1. 1. 1. 1. 1.    whether there [are] any contemporaneous documents evidencing a loan;
               2.    whether the manner for repayment is specified;
               3.    whether there is security held for the loan;
               4.    whether there are advances to one child and not others, or advances of unequal amounts to various children;
               5.    whether there has been any demand for payment before the separation of the parties;
               6.    whether there has been any partial repayment; and
               7.    whether there was any expectation, or likelihood, of repayment.

See also Barber v. Magee, 2017 ONCA 558 (CanLII), at para. 4.”

         Chao v. Chao, 2017 ONCA 701 (CanLII) at 53-54

“Sections 144(1) and (2) of the Bills of Exchange Act address the consequences when there is a material alteration to a bill, including a promissory note. Section 145 sets out five circumstances that constitute material alterations. These sections state:

144(1) Subject to subsection (2), where a bill or an acceptance is materially altered without the assent of all parties liable on the bill, the bill is voided, except as against a party who has himself made, authorized or assented to the alteration and subsequent endorsers.

(2) Where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder in due course, the holder may avail himself of the bill as if it had not been altered and may enforce payment of it according to its original tenor.

145 In particular, any alteration

(a) of the date,

(b) of the sum payable,

(c) of the time of payment,

(d) of the place of payment,

(e) by the addition of a place of payment without the acceptor’s assent where a bill has been accepted generally, is a material alteration.

These sections make it clear that a note can be altered with the assent of all parties, and the alteration will be binding as between them. However, by making a material alteration without the assent of all the parties to the note, the note becomes void against any party who did not assent to the material alteration: Ian F.G. Baxter, The Law of Banking, 4th ed. (Scarborough: Thomson Canada Limited, 1992), at p. 31. The only issue in this case was whether either Dennis or Anna Chedli had assented to the alteration of the notes. It was accepted that a note could be materially altered by an agreement or a letter. Baxter states, in the context of discussing s. 144 of the Bills of Exchange Act, that “[o]n principle a written agreement can be varied by consent, and even by a later oral agreement”: Baxter, at p. 31, fn. 189. He references Goss v. Nugent (1833), 5 B & Ad. 58, 110 E.R. 713 (Eng. K.B.).”

         James v. Chedli, 2021 ONCA 593 (CanLII) at 40-41

“We live in a world of such technological advance that every utterance and gesture is increasingly open to digital capture, whether at a street corner or in a private conversation in one’s home. Privacy experts and advocates are increasingly concerned about the deleterious effects of the unrestrained monitoring of our utterances and behaviour. On the internet, it is said that anything captured can never be forgotten. Provincial and federal legislation has been passed to try to find a reasonable meeting point between the right to information and the rights of privacy, security and free expression.  It would be fair to say that the present legislative balance is continually subject to review.

In the evidentiary sphere, the general rule is that if it is relevant, it is admissible, provided that it is not hearsay. But that rule is as often honoured in the breach as it is in its fullest expression. The rules of evidence have evolved to balance various interests in ensuring that the court’s process and its search for truth works towards justice and the public’s interest despite the classical rules of evidence.  Further, under r. 14(18) and (19), certain hearsay is admissible in family law motions.

One iteration of the evolution of evidentiary rules in family law is the reluctance to allow surreptitious recordings made by spouses of each other and their children. The reasons for that stance were articulated by Sherr J. in Hameed v. Hameed, 2006 ONCJ 274. There, Sherr J stated at paras. 11-12:

[11] … Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 CanLII 14087 (ON SC), 1998 CanLII 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court.

The rule is not an absolute one.  As Sherr J. noted, the court retains some discretion to determine whether the probative value of secretly recorded evidence outweighs the strong policy factors set out above.

The court’s discretion to exclude or allow secret recordings in family law matters was confirmed by the Court of Appeal for Ontario in Sordi v Sordi, 2011 ONCA 665. There, Epstein J. A., writing for the court, upheld the trial judge’s exercise of discretion to exclude the recordings.  She referred at para. 12 to “the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings”.

In Scarlett v Farell, 2014 ONCJ 517, Spence J. of the Ontario Court of Justice, reviewed a number of cases that had been decided to date regarding the admission of surreptitious recordings into evidence. Those cases included  Hameed, as well as Seddon v. Seddon, [1994] B.C.J. No. 1062 (B.C. S.C.), Toope v. Toope, 2017 CarswellNFld 185 (Nfld U.F.C.) and Reddick v. Reddick, [1997] O.J. No. 2497 (OC (GD)). Spence J. helpfully concluded that these cases, which offered differing results regarding the admission of such recordings contained a common seed of principle, which he set out at para. 31 as follows:

31      Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

Spence J. admitted into evidence the recordings in the case before him, finding that they had probative value. But he was also clear that the recordings were not surreptitiously made. Had they been secretly recorded, Spence J. was clear that he would not have allowed them into evidence.

In F.(A.) v. A.(B.J.), 2017 ONCJ 108, Sager J. of the Ontario Court of Justice considered the authorities cited above. She allowed recordings made and transcripts created by one party into evidence, finding that the recordings were not secretly made. Moreover, even absent such a finding, she stated that she would have allowed them into evidence. In one of the recordings, the mother could be heard threatening to kill herself, disparaging the father and the child, “using racial slurs and profanity in excess”. Sager J. stated that the issues raised by the recordings were “of sufficient importance” to the determination of the issues before her that they should be admitted into evidence.

In L.R. v. Children’s Aid Society, 2020 ONSC 4341, Horkins J. of this court affirmed a ruling of Zisman J. of the Ontario Court of Justice (2020 ONCJ 22), extending the general prohibition on the admission of surreptitious recordings to child protection professionals and a reunification therapist.

In the years since Hameed was first decided by Sherr J., the attempt to admit secretly made recordings by one parent of another and/or the child/ren has surged from a trickle to a gusher. I find that I am regularly provided with secret recordings that one party has made of the other, which the recording party asks me to then consider in order to prove the instability or perfidy of the other. Most of the times, the recording is an edited or selectively recorded version of a highly contentious argument between the parties.

It is dangerous to the state of family law and more importantly, to the parties and children governed by it, to treat their dealings as if they were living under the Stasi in East Germany.  Not everything is public and not every utterance or gesture needs to be recorded.  To the contrary, routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.

The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.”

            Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII) at 30-41

“When dealing with a finding of imputed income at trial, as in this matter, the   court in Colucci commented as follows, at para. 63:

Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34).  This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).

         Jamil v. Iqbal, 2021 ONSC 5952 (CanLII) at 63

“At para. 100 [of Kerr v. Baranow], Cromwell J. offered the following summary regarding “quantum meruit versus constructive trust”:

I conclude:

1. 1. 1. 1. 1.       The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.
            2.       Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
            3.       To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
            4.       Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

In determining the appropriate remedy, it is also necessary to consider the conferral of mutual benefits.  This is where the work done and expenses incurred by both parties in renovating the property have the most relevance.  Cromwell J. said the following, at paras. 101 -102:

As discussed earlier, the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits; each party in almost all cases confers benefits on the other: Parkinson, at p. 222. Of course, a claimant cannot expect both to get back something given to the defendant and retain something received from him or her: Birks, at p. 415. The unjust enrichment analysis must take account of this common sense proposition. How and where in the analysis should this be done?

The answer is fairly straightforward when the essence of the unjust enrichment claim is that one party has emerged from the relationship with a disproportionate share of assets accumulated through their joint efforts. These are the cases of a joint family venture in which the mutual efforts of the parties have resulted in an accumulation of wealth. The remedy is a share of that wealth proportionate to the claimant’s contributions. Once the claimant has established his or her contribution to a joint family venture, and a link between that contribution and the accumulation of wealth, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share. While determining the proportionate contributions of the parties is not an exact science, it generally does not call for a minute examination of the give and take of daily life. It calls, rather, for the reasoned exercise of judgment in light of all of the evidence.”

         Kamermans v. Gabor, 2018 ONSC 5241 (CanLII) at 52-53

“In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a.    It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b.    When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c.    When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i.     The risk of exposure to COVID-19 that the child willface if she or he is in school, or is not in school;

ii.    Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii.     The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.     Any proposed or planned measures to alleviate any of the risks noted above;

v.    The child’s wishes, if they can be reasonably ascertained; and

vi.     The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.”

         Zinati v. Spence, 2020 ONSC 5231 (CanLII) at 27