Month: December 2022

“Central to Mr. Karam’s submissions is the fact that the trust was set up for a legitimate objective and that at no time was he acting with the intention of avoiding the rules of the family patrimony. According to him, to include the value of the residence in the family patrimony in the absence of bad faith or fraudulent intention would be to transform unduly a rule of protective public order into a rule of directive public order (R.F., at para. 36). In my view, this reasoning is based on a misunderstanding of the difference between protective and directive public order rules and on the operation of such mandatory rules more generally.

I would agree with Mr. Karam that the rules of the family patrimony are protective public order rules, in that they are imposed by the legislature to safeguard the interests of vulnerable parties and to insure a certain equity within the institution of marriage (C. Dubreuil and B. Lefebvre, “L’ordre public et les rapports patrimoniaux dans les relations de couple” (1999), 40 C. de D. 345, at p. 351). However, it does not follow from this characterization that the operation of these rules will depend on the behavior, intention or good faith of the parties during their contractual relationship, as Mr. Karam suggests (R.F., at para. 32).

In Garcia Transport Ltée v. Royal Trust Co., 1992 CanLII 70 (SCC), [1992] 2 S.C.R. 499, at pp. 528‑30, Justice L’Heureux‑Dubé explained that the difference between protective and directive public order rules arises from the possibility, in the case of protective public order rules, to renounce the protection offered by the law once the right is acquired. This is consistent with art. 423 C.C.Q., which provides that spouses can renounce their rights in the family patrimony only upon the death of the other spouse, the judgment of divorce, separation from bed and board or nullity of marriage. As the Court of Appeal recently stated, [translation] “[t]he courts recognize that ‘any renunciation made otherwise than in the form prescribed by article 423 C.C.Q. is prohibited and contrary to public order’. Such a renunciation ‘must be clear, precise and explicit’. Moreover, a spouse may withdraw his or her renunciation as long as the court has not recorded it” (Droit de la famille — 19582, 2019 QCCA 647, at para. 24 (CanLII) (footnotes omitted); see also Droit de la famille — 131166, 2013 QCCS 2194, at paras. 70-76, conf. by Droit de la famille — 1487, 2014 QCCA 123, at paras. 60-62 (CanLII); Droit de la famille — 112467, 2011 QCCS 4229, at paras. 45-48 (CanLII), conf. by Droit de la famille — 121301, 2012 QCCA 1018, at paras. 44-48 (CanLII)).

It does not follow, as Mr. Karam suggests, that spouses are free to organize their affairs in a way that displaces the mandatory rules imposed by the legislature, provided that they did not intend to avoid these rules or did not act in bad faith. If we were to include this subjective element as a requirement for the operation of mandatory rules, it would necessarily put the burden on the party claiming the protection of the law to demonstrate that the co‑contracting party knew about this rule and was trying to evade it. This would run contrary to the purpose of protective public order rules. I am not aware of any authority, jurisprudential or doctrinal, suggesting that mandatory rules are triggered only by one’s intention to evade them.

I therefore share the view of the trial judge when he writes that the [translation] “question is thus not so much what the Defendant’s objective was in creating the trust, but rather whether the interposition of the trust patrimony would here have the consequence of avoiding the imperative family patrimony rules” (para. 55 (emphasis in original)). Having regard to the contrary opinion, this is also how we should understand the comment made by the Court of Appeal in Droit de la famille — 13681, at para. 31, where Fournier J.A. writes that [translation] “[t]he creation of a trust must not have the consequence of avoiding the application of public order provisions, such as those pertaining to the family patrimony”. In this case, the spouses had transferred all their assets to two trusts constituted based on the advice of their accountant and their tax lawyer in an effort to protect their assets and minimize their taxes (see Droit de la famille — 121905, 2012 QCCS 3977, at paras. 48, 54 and 71 (CanLII)). The remark of Fournier J.A. was made in that context and is not limited, as St‑Pierre J.A. suggests, to spouses who deliberately attempt to avoid the rules of the family patrimony (C.A. reasons, at para. 81).”

            Yared v. Karam, 2019 SCC 62 (CanLII) at 46-50

“When the pandemic started in March 2020, case law came out stating that in most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to. There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict the other’s parenting time to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.

However, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 raises sufficient concerns about parental judgment that direct parent-child contact is not in a child’s best interests. In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz wrote at paragraph 14 that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Justice Pazaratz went on to write at paragraph 23 of Ribeiro that “judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. …”

 Since the release of Ribeiro, other courts have held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others. See:  Skuce v. Skuce, 2020 ONSC 1881, at para. 85.

In A.T. v. V.S., 2020 ONSC 4198, the court made an order for no in-person parenting time for a father who refused to follow COVID-19 health protocols.

In Balbontin v. Luwana, 2020 ONSC 1996, Justice David Jarvis wrote that parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local, he said, have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Justice Jarvis suspended the parenting time of a parent who was not responsive to the other parent’s inquiries.

In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213. The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.

In A.G., supra, where the mother sought to terminate the in-person parenting time of a parent who had only had a single vaccination, Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time from two hours to one hour each week and requiring that it take place outdoors.

In L.S. v. M.A.F., supra, the mother only learned at trial that the father was unvaccinated. The mother did not seek to reduce the father’s parenting time of three hours each week but sought additional safety precautions. This court made the following orders to reduce the child’s chances of contracting the virus during the father’s parenting time:

a)  The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.

b)  The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.

c)  The child and the father shall wear masks at all times during the father’s parenting time.

d)  Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.

e)  If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.

f)  If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.”

            S.W.-S. v. R.S., 2021 ONCJ 646 (CanLII) at 59-67

“There is nothing in the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) or the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) that specifically prevents a spouse from making a claim for equalization of net family property after she has declared bankruptcy. However, the interaction of the two statutes requires further examination.

Property of a bankrupt person vests in the trustee. Once the assignment in bankruptcy is filed, a bankrupt can no longer dispose of or otherwise deal with their property: see BIA, s. 71.

A right to claim an equalization payment falls within the broad statutory definition of “property” in s. 2 of the BIA which defines “property” as: “any type of property…and includes money, goods, things in action, land and every description of property, whether real or personal, legal or equitable, as well as obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, in, arising out of or incident to property.”

The right to claim an equalization of net family property arises when the triggering event of a marriage breakdown occurs. The right to enforce an equalization claim is not exempt from the reach of the trustee, even though it is described as being “personal” between the spouses under s. 7(2) of the FLA: see Blowes v. Blowes (1993), 1993 CanLII 8521 (ON CA), 16 O.R. (3d) 318 (C.A.); Liddell v. Liddell, 2011 ONSC 586.

A discharged bankrupt has no capacity to assert an equalization claim because all of her property has already vested in the trustee on her assignment to bankruptcy: see Green v. Green, 2015 ONCA 541.

The bankrupt spouse has no capacity to pursue an equalization claim that has vested in the trustee. Unless the trustee joins in the proceeding, or has executed an assignment of these rights, the bankrupt has no cause of action. An abandonment of the cause of action is not sufficient, nor is the trustee’s consent to continue the claim. The bankrupt’s discharge or the discharge of the trustee, does not re-vest in the bankrupt any rights which have previously accrued to the trustee: see Robert A. Klotz, Bankruptcy, Insolvency and Family Law, 2nd ed. (Toronto: Carswell, 2001), at 6-36.

In this case, the wife argues that she is still entitled to equalization because the matrimonial home and the husband’s RRSPs were exempt from bankruptcy. She also submits that the husband’s business properties were in his name alone, and therefore were not swept into her bankruptcy. She claims that she is entitled to “equalization to assets”.

It is true that certain property of a bankrupt is excluded from bankruptcy, including a principal residence with less than $10,000 equity, and RRSPs (except for contributions during the last year): see BIA, s. 67; Execution Act, R.S.O. 1990, c. E.24, s. 2.

However, the wife’s submissions fail to take into account the fact that separating spouses are not entitled to a proprietary or beneficial interest in the other’s assets. Instead, separating spouses are entitled to receive one-half the value of the property accumulated during the marriage. If the spouses did not own assets of equal value, one spouse must make an equalization payment and a monetary debt is owed: see Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605.

When one spouse declares bankruptcy, the claim for that monetary debt vests in the trustee. Whether or not any assets are exempt from the bankruptcy is irrelevant.”

            Kinsella v. Mills, 2017 ONSC 7093 (CanLII) at 19-28

“In Skinner v. Skinner, the Court described the following principles respecting the variation of a consent order citing the Supreme Court of Canada in L.M.P. v. L.S. (paras. 172 to 174):

(a)     The Court must be satisfied that there has been a change of circumstance since the making of the prior order (or in this case the Agreement);

(b)     The “change of circumstances” must be “material” meaning that “if known at the time, would likely have resulted in different terms”;

(c)     The focus is on the prior order (or in this case the Agreement) and the circumstances in which it was made;

(d)     The Court should not depart from it lightly.  The test is whether any given change “would likely have resulted in different terms”;

(e)     What will amount to a material change will depend on the actual circumstances of the parties at the time of the order; and,

(f)      The subsequent conduct of the parties may provide an indication.

L.M.P. v. L.S also stands for the general provision that where there is a material change in circumstances clause in an agreement, the Court must examine the terms of the separation agreement and the circumstances of the parties at the time of the agreement to determine what amounts to a material change.”

            Zawahreh v. Alkhoury, 2021 ONSC 7956 (CanLII) at 43-44

“The respondent relies on the status quo and argues that there must be a material change in circumstances in order for the current parenting arrangement to be changed.   The applicant submits that there is no status quo, as the current order was made on consent on an interim without prejudice basis.  The applicant also submits that there has been a change now that the CAS has made a report on the allegations against Olena.

Where a status quo is in place, courts are reluctant to interfere with such arrangements prior to trial.  As noted in Coe v. Tope, 2014 ONSC 4002, at paragraph 25, “[t]he status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change.”  However, the applicant says that there is no status quo that has been established in the circumstances here.

The court order in place, made by Justice Faieta on October 13, 2020, was made on an interim without prejudice basis.  The applicant submits that as the order was made on an interim without prejudice basis, then no material change must be shown.  This is similar to the question considered in Verma v. Di Salvo, 2020 ONSC 850, where the court stated (at paras. 38-40):

[38]     The mother argues that my temporary order of October 17, 2019 establishes a parenting status quo, which should not be changed absent a material change in circumstances.  I disagree.

[39] My order set out parenting orders as terms of an adjournment of the motion that, among other things sought custody of J, parenting time for the mother in accordance with the advice of a parenting coordinator, and delivery of J to the father.  Without having heard that motion on the merits, the order setting out terms of the adjournment cannot be considered an order creating a status quo that cannot be varied.

[40] The mother also argues that the current arrangement is a de facto status quo.  I disagree again.  The current parenting arrangement was established by my order setting out the terms of the adjournment and, for the reasons I explain above, is not an order that creates a status quo.”  (emphasis added)

Similarly, in Al Tamimi v. Ramnarine, 2020 ONSC 4558 temporary measures had been put in place by the court on December 19, 2019 when the motion before the court was adjourned.  On the return of the matter, heard on July 17, 2020, the court determined that there was no status quo, as there had been a temporary order put in place as a “temporary response to an evolving situation”.

The current “status quo” in this case arose from an interim without prejudice order made on consent at a case conference.  The parenting time issue was not considered on its merits.  The temporary arrangement for parenting time with the applicant was put in place until the allegations against Olena could be investigated.  This is not the type of order that creates a status quo which would require a material change in circumstances in order for the arrangement to be changed.”

            Nekoz v. Nekoz, 2021 ONSC 8040 (CanLII) at 8-12

“The test for adducing additional evidence after a Court has reserved its decision is very high.  The test is set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd. (2001 SCC 59, [2001] 2 S.C.R. 983).  In that case, the Court set out the following test:

a)   Would the evidence have affected the outcome of the hearing?

b)   If so, was the evidence discoverable prior to the hearing?”

Rana v. Rana, 2019 ONSC 7048 (CanLII) at 39

“Where the parties wish to engage a joint expert but do not agree on a matter relating to the engagement, either of them may apply to the court for directions: Family Law Rules, r. 20.2(9). In my view, that provision includes disagreements that arise after the expert has been engaged and before his or her report is complete.

To ensure the efficacy and reliability of the jointly retained expert evidence, the parties are required to “cooperate fully with the expert and make full and timely disclosure of all relevant information and documents to the expert”: r. 20.2(12). The court may draw any reasonable inference against any party that fails to do so: r. 20.2(12).

The predominant purpose of retaining a joint expert is to avoid the battle of competing experts. That usually means a savings of time and expense, and often aids in resolution of some or all issues.

A neutral, independent, jointly retained expert investigates the issue(s), sets forth the facts on which his or her opinion is based, sets out the documents he or she relied on, and provides an opinion and the rationale for that opinion: r. 20.2(2),(3), and (5). The expert owes a duty to the court to be fair, objective and non-partisan. That duty to the court trumps any obligation owed by the expert to a party: r. 20.1(3).

Where the parties have engaged a joint expert, no other litigation expert may present opinion evidence on that issue unless the court orders otherwise: r. 20.2(13). Thus, once the expert report is finalized and absent a supplementary report, the parties are not permitted to adduce other expert evidence on the issue without leave of the court.”

            Zantingh v. Zantingh, 2021 ONSC 7959 (CanLII) at 72-76

“In Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365, Zisman J. lays out the following applicable legal principles with respect to a finding of need of protection at paras. 71-75:

The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

The risk of harm must be real and likely and not speculative.

Harm caused by neglect or error in judgment can come within a finding of risk of physical harm.

With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children’s Aid Society of Hamilton-Wentworth v. R. (K.) (footnote omitted), wherein he states:

the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date.

In adopting this “flexible approach” Justice Carolyn Horkins recently explained in the case on [sic] Children’s Aid Society of Toronto v. RM (footnote omitted):

The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.

In many protections matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

The finding that a child is in need of protection is an essential stage of a child protection proceeding, and if the court finds that the child is not in need of protection that is the end of the matter.”

Family and Children’s Services of Guelph and Wellington County v. A.M.P. and K.D.S., 2020 ONSC 7418 (CanLII) at 77-78