Month: October 2022

“This court does not ordinarily give reasons on motions for leave to appeal, mirroring the practice in the Court of Appeal and the Supreme Court of Canada.  We give reasons in this case solely to provide some guidance in family law cases: there is a continuing pattern of unmeritorious motions for leave to appeal temporary support orders in family law cases, and this is undesirable for the parties and for the administration of justice.

In this case, the motions judge ordered Mr Khan to pay spousal and child support for two children to Ms Lokhandwala.  The motions judge did not state that the children spend half their time with their father.  The motions judge did not apply a s.9 offset, nor did he explain why he was not applying a s.9 offset, given the time the children spend with each parent.

Assuming without finding that the motions judge made a palpable and overriding factual error, this would be a basis on which to doubt the correctness of his order.  However, that does not make the proposed appeal a matter of “such importance… [that] leave to appeal should be granted” (Rule 62.02(04)(a)).  Nor does it make it “desirable that leave to appeal be granted” (Rule 62.02(04)(b)). Under either branch of the test under R.60.02(04), the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.).  Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.

In family law, temporary support orders are designed to establish or maintain a reasonable state of affairs pending trial.  Unless expressly stated otherwise, these orders are without prejudice to adjustment by the trial judge.  Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings.  Errors in temporary support orders – even ones that are straightforward – are almost always better addressed at trial rather than by way of interlocutory appeal.  As argued by the responding party in her factum, “instead of expending their scarce resources on a potential appeal from a [temporary] Order, the parties should focus their attention on resolving the case on a final basis.”

This case is not important to the development to the law.  Any error there may have been calculating temporary child support may be adjusted by the trial judge in due course.  And any error made by the trial judge on these issues can be pursued by way of an appeal from a final order.

Finally, we wish to be clear that we are not criticizing counsel for the moving party in this endorsement.  The practice of seeking leave to appeal in cases like this has been commonplace in family law matters.  By this endorsement we signal to the family law bar that this practice should not continue.”

Lokhandwala v. Khan, 2019 ONSC 6346 (CanLII) at 2-7

“Disparity in incomes does not establish, in and of itself, an entitlement to spousal support.  The Spousal Support Advisory Guidelines (SSAG) Users Guide is very clear that a determination of entitlement under the Divorce Act is still a condition precedent to an order for support.

One of the objectives of a support order under s.15.2(6) of the Divorce Act is the promotion of self sufficiency. To establish entitlement based on “need” a spouse is first required to show their inability to become self sufficient, in whole or in part.  The assessment of “need” is based on a reflection of the standard of living the parties had while together, so the husband in this case is not limited to the modest lifestyle he has adopted.”

            Dickson v. Dickson, 2021 ONSC 7180 (CanLII) at 6-7

“On a motion under Rule 14(4.2), the Court’s role is to assess if the matter is urgent.  The jurisprudence provides that abductions, threats of harm or dire financial circumstances are examples of urgent matters: Yelle v Scorobruh, 2016 ONSC 3300.  In some situations, a complete denial of access, or the imposition of very strict conditions akin to a denial of access, could certainly amount to a “threat of harm”. The harm need not be physical. Here, the type of harm alleged is one resulting from a sub-optimal parenting schedule (from the applicant’s perspective). It is very common for separating parties to disagree on the parenting arrangements that are in the best interests of their children. Parties should be encouraged to make, and to accept, reasonable offers. A balance must be struck between, on the one hand, dispending swift justice in situations where there are immediate concerns affecting serious health, safety and economic concerns and, on the other hand, making family law orders based on a complete evidentiary record, providing the parties with sufficient time to present their case, and making judicious use of scarce judicial resources. Where, as here, a parent is prepared to agree to reasonable parenting time, these arrangements should be fully explored before resorting to an urgent motion: Porter v. Maclennan, 2011 ONSC 5298.”

         Iliuta v. Li, 2021 ONSC 7308 (CanLII) at 7

“There is no dispute with respect to the legal test applicable on this motion. In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows: see generally, D.C. v T.B., 2021 ONCA 562 (”D.C. v. T.B.”), at paras 9-10:

i.    whether, on a preliminary assessment, the appeal raises a serious question to be tried;

ii.    whether the child will suffer irreparable harm if a stay is refused; and

iii.      the balance of convenience, namely, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal.

The overriding consideration in parenting cases is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B.; K.K. v. M.M., 2021 ONCA 407, at para 17. Moreover, the onus is on the moving party to demonstrate that the stay of the original order pending appeal should be granted.

The standard for appellate review of a custody or parenting decision is exacting. The function of the reviewing court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious apprehension of the evidence, or an error of law. It should also be noted that although all three parts of the test for a stay must be satisfied, the three criteria are not watertight compartments and the strength of one may compensate for the weakness of another: Mudry v. Danisch, 2014 ONSC 435 (Div. Crt), at para. 166.”

         Samama v. Gaskovski, 2021 ONSC 7110 (CanLII) at 11-13

“The grandparents Ms. and Mr. Hameed in this matter in arguing the importance of preserving their relationship with Sydney, presented a number of decisions set out below that emphasized that deference to a parent should only be shown if that parent’s decisions are reasonable. They suggest that Alicia’s actions and decisions in blocking contact with Sydney should be seen as unreasonable.

The grandparents argue that while courts frequently cite Chapman as their legal starting point in a grandparent access case, they often distinguish it and order access, or interpret it as suggested in McLaughlin v. Huehn, 2004 ONCJ 426 (CanLII), 2004 ONCJ 426 (Ont. C.J.) (Quicklaw or CanLII). In that case, McSorley, J. interpreted Chapman to mean that courts are to show deference to parental decisions where such decisions are reasonable. The judge wrote:

27 The case of Chapman v. Chapman and Chapman does not stand for the proposition that the wishes of a parent on the issue of access by a member of the extended family should take precedence over the factors in section 24 of the Act. It is but one factor that must be considered. It is always important to defer to the decisions of parents regarding their children. But deference is only accorded when those decisions are reasonable. When the decision to end all contact between a child who has a positive relationship with grandparents, aunts, uncles, cousins and great aunts and grandmothers is made entirely because of hurt feelings from 3 to 5 years ago, then the decision is not reasonable and is no longer entitled to deference.

The Nova Scotia Court of Appeal in Simmons v. Simmons, 2016 CarswellNS 1017 (N.S. C.A.) noted that Chapman “has not had the effect of making the parental autonomy model the singular way to proceed in grandparent access cases.” The Court of Appeal noted:

In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5 (CanLII).”

Hameed v. Hameed, 2018 ONCJ 749 at 47-48

“I adopt the reasoning and guidelines set out by Hardman J. in Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, at paras. 10-40, regarding the importance of exploring and determining at the earliest opportunity whether a child is a “First Nations, Inuk or Métis child” under the Act and Regulations and, in the case of a connection with a First Nation, the need for service on any identified band.  The band name of the Algonquins at the G[…] reserve is the Algonquins of P[…].  This is the band that must be served with notice of these proceedings and given the opportunity of being a party to these proceedings in accordance with s. 79(1) of the Act.

The Society urged me not to make a finding that the children in this case are First Nations children.  Given the uncontroverted evidence before me, I could not accede to this request.  The Society’s counsel then urged me to continue with the trial while notice is being given to the Algonquins of P[…], even though they would not initially be present at the trial.  Clearly, that would not have been appropriate.  I shared the Society’s concern that this late development will result in further delay in a final decision being made to further the children’s best interests through a permanent and stable plan for their care.  The two girls have been in care for a period way beyond that statutory timelines.  Nevertheless, the Legislature has made it clear that it is of great importance in our quest for reconciliation with our First Nations peoples to protect their right to participate in decision-making regarding the welfare of First Nations children.

Section 79(7) of the Act allows the court to dispense with notice to a person where the court is satisfied that the time required for notice to that person might endanger the child’s health or safety.  No evidence was provided on the motion as to how the health and safety of any of the children currently in care would be negatively impacted by a further delay in these proceedings.  In saying that, I do not want to be seen as ignoring the harm that can be caused through a delay in creating a permanent, healthy, stable home environment for children.  However, in the balancing act required in applying this legislation, significant weight must to be given to the rights of our First Nations communities to further the welfare of their people.”

Children’s Aid Society of Ottawa v. M.G., 2019 ONSC 6142 (CanLII) at 14-16

“Terms may be implied in a contract based on the presumed intention of the parties, “where the implied term is necessary to give “business efficacy” to the contract; or where the implied term otherwise meets the “officious bystander” test – that is, a term that the parties would say, if questioned, “of course”” that would be understood to be a term of the contract.”; As stated by the Ontario Court of Appeal in Rankin Construction Inc. v. Ontario, 2014 ONCA 636 at para. 29:

Terms may be implied in a contract based on: (1) custom or usage; (2) legal incidents of a class or type of contract; or (3) the presumed intention of the parties, where the term is necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed”: Canadian Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. 711, at p. 775; see also M.J.B. Enterprises, at para. 27; Double N Earthmovers, at para. 30; Martel, at para. 81. Any implied terms must fit and be the necessary implication of the express terms; if there is any evidence against the proposed term, it cannot be implied: M.J.B. Enterprises, at para. 29.

Also see, Packall Packaging Inc v Ciszewski, [2016] OJ No 31 at para. 13 and Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252 (CanLII), [2012] O.J. No. 834 at para. 448-459.”

         Bilotta v. Booth, 2019 ONSC 5956 (CanLII) at 17

“The court can consider the necessity to vary the custody and access arrangements if the parents’ relationship has deteriorated to the point where they can no longer cooperate. Tu v. Tu (2000) 2000 CanLII 22591 (ON SC), 7 R.F.L. (5th) 178. However, just because the parents have some disagreements over childcare decisions, the court should not for those reasons alone vary a joint custody order. Cabral v. Cabral [2000] O.J. No. 1092.

In particular, the decision of St. Pierre v. St. Pierre 2005 CanLII 14007 (ON SC), [2005] O.J. No. 1669 confirms that where joint custody of the child had worked for three years, the breakdown in communication between the parties was not a ground for varying the joint custody order to provide sole custody to the mother. In that case the children enjoyed an exceptionally close relationship with the father.

The court must consider all relevant factors and the relationship of the parents to ensure there is no power imbalance or other factors which would make joint custody unworkable.

An ongoing dispute between parents and their chronic difficulties in resolving parenting issues causing emotional and physical stress on the child can be grounds for varying the joint custody order made to provide for sole custody to one parent.  Sterling v. Sterling [2005] O.J .No. 1936. Griffin v. Bootsma [2004] O.J. No. 2781 varied 2005 CanLII 35095 (ON CA),[2005] O.J. No 4112 (Ont. C.A.).”:

Williamson v. Massinger, 2014 ONSC 6063 (CanLII) at 17-20

“The importance of timely and full financial disclosure by a parent paying child support was emphasized by the Supreme Court of Canada in  Colucci v. Colucci, 2021 SCC 24:

[49]    The pivotal role of disclosure comes as no surprise since the premise underlying the Guidelines “is that the support obligation itself should fluctuate with the payor parent’s income” (D.B.S., at para. 45). The structure of the Guidelines thus creates an informational asymmetry between the parties. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would thus be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.

[50]  This is why frank disclosure of income information by the payor lies at the foundation of the child support regime. In Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law” (para. 11). A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and “the processes that have been carefully designed to achieve those policy goals” (Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44). Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach (Michel, at para. 32, per Brown J.; Brear, at para. 19, per Pentelechuk J.A.).

[51]  Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.

[52]  In line with these realities, courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income (Brear, at paras. 19 and 69, per Pentelechuk J.A.; Roseberry v. Roseberry, 2015 ABQB 75, 13 Alta. L.R. (6^th) 215, at para. 63; Cunningham v. Seveny, 2017 ABCA 4, 88 R.F.L. (7th) 1, at paras. 21 and 26). As explained by Brown J., speaking for the full Court in Michel, payor parents “are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations” (para. 33, referencing Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 47-49). Courts and legislatures have also implemented various mechanisms to incentivize and even require regular ongoing disclosure of updated income information by the payor, along with tools to move proceedings forward in the face of non-disclosure. Those mechanisms include imputing income to payors who have failed to make adequate disclosure, striking pleadings, drawing adverse inferences, and awarding costs. By encouraging timely disclosure, these tools reduce the likelihood that the recipient will be forced to apply to court multiple times to secure disclosure.  [Emphasis added]”

         Mohamed v. Dick, 2021 ONSC 6860 (CanLII) at 7

“The test for access to a child in extended society care has changed under the new CYFSA (Child Youth and Family Services Act, 2017) to be focused on a determination of what is in the child’s best interest.  The case law since the CYFSA was enacted indicates that following regarding the new test under s. 105(5) and (6):

1. While the revised legislation gives the court more flexibility and discretion in determining the issue of access to a child in extended society care, it is important to be mindful of the following:

(a)         There is still a presumption against access to a child in extended society care.

 (b)         It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way.

(c)          The court still has discretion to consider whether access will impair future adoption opportunities.

(d)          While the overall legal test is less rigidly defined, nonetheless the onus remains entirely on the person seeking access to a child in extended society care to establish on a balance of probabilities that access would be in the best interests of that particular child: Children’s Aid Society of Niagara Region v. B.P. [2018] O.J. No. 3792 (Ont. S.C.).

2. There is no longer a “formal” requirement that both considerations of beneficial and meaningful, and impairing adoption be demonstrated to satisfy the court that an access order should be made. The enactment of the CYFSA has arguably lessened the onus on the access applicant.  It may not have completely done away with the reverse onus that was implicit in s. 59(2.1) of the CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H. [2018] O.J. No. 3675 (Ont. C.J.).
3. The person seeking access must prove that access is beneficial to the child on a balance of probabilities.  While this is now a consideration under the Act,it is an important one, perhaps more important than any other.  The evidence must show that the relationship is beneficial and meaningful to the child now and not in the future: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
4. The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made.  The extended care order presumes that the child and the access seeker will not be re-united in one family.  In fact, the permanency plan for such child is necessarily with someone else.  So why have an access order?  The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful.  It is a child focused inquiry.  It matters only a little, if at all, what the relationship may be for the access seeker: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
5. The case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant under s. 105(6) of the CYFSA: Children’s Aid Society of Niagara Region v. B.P., supra.”

The Children’s Aid Society of the Regional Municipality of Waterloo v. J.J., 2018 ONCJ 750 (CanLII) at 27