Month: March 2023

“The respondent, Mr. Waite, moves under the Family Law Rules, O.Reg. 114/99 as am, rule 25(19) to set aside provisions of a Final Order dated July 4, 2019 made following an uncontested trial.  The basis of his motion is inadequate notice, fraud and mistakes in the information provided to the court by Ms. Telford.

FLRs r 25(19) provides the following:

(19) The court may, on motion, change an order that,

            (a)  was obtained by fraud;

            (b)  contains a mistake;

   (c)  needs to be changed to deal with a matter that was before the court but that it did not decide;

           (d)  was made without notice; or

  (e)  was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.  O. Reg. 151/08, s. 6.

Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 is often referred to by courts determining a motion under r 25(19) for the five factors it set out in the civil context:

[48]      The court must consider the following three factors:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

(c) whether the facts establish that the defendant has an arguable defence on the merits.

[49]      To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

Not all of these factors need be met but at least one must be engaged before the court exercises its broad discretion under rule 25(19): Gajic v. Lazeo, 2019 ONSC 4690. Other factors may also be considered including deficiencies in full and frank disclosure during the default proceeding and deficiencies in service that could impact the outcome of the trial: Irons v. Irons, 2020 ONSC 1471.”

         Telford v. Waite, 2021 ONSC 2264 (CanLII) at 1-4

“The parties seek to validate their marriage of April 11, 2021. On that date, the parties engaged in a religious marriage ceremony by a person qualified to marry them in front of friends and family. However, they married without having first obtained a valid marriage licence despite several attempts to do so. When the parties subsequently attended Ottawa City Hall to register the marriage in the province of Ontario, they were instructed to obtain a validation of the marriage from the court before officials would agree to register the marriage.

Section 31 of Marriages Act, RSO 1990, c.M.3 authorizes a court to validate a marriage entered into in good faith. Section 31 of the Marriages Act states:

Marriages solemnized in good faith 

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the license.

The test for validating a marriage under section 31 was recently addressed by this Court in Lalonde v. Agha, 2020 ONSC 3486, and affirmed by the Ontario Court of Appeal, 2021 ONCA 651. Paragraph 52 of the Court of Appeal decision states:

Section 31 of the Marriage Act has four elements: 1) the marriage must have been solemnized in good faith; 2) the marriage must have been intended to be in compliance with the Marriage Act; 3) neither party was under a legal disqualification to contract marriage; and 4) the parties must have lived together and cohabitated as a married couple after solemnization: Isse, at para. 16.  Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.”

         Torabi v. Hilson, 2022 ONSC 4450 (CanLII) at 1-3

“A resulting trust may be imposed to return property to the person who paid for the purchase and is beneficially entitled to it, from the person who has title to it: Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436.  In family law, the cases generally deal with situations of gratuitous transfers between spouses.

In Kerr v. Baranow, 2009 BCCA 111, the Court of Appeal said, at para. 42: “a resulting trust is an equitable doctrine that, by operation of law, imposes a trust on a party who holds legal title to property that was gratuitously transferred to that party by another and where there is evidence of a common intention that the property was to be shared by both parties.”

…

The Supreme Court of Canada in Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4^th) 621 (S.C.C.) held that the following three elements must be proven on a balance of probabilities to succeed in a claim for unjust enrichment: (a) an enrichment; (b) a corresponding (causally connected) deprivation; and (c) an absence of juristic reason for the enrichment: at page 630.

In Kerr v. Baranow 2011 SCC 10, Justice Cromwell sets out the Court’s analysis of the remedies for unjust enrichment at para. 100:

a.   The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b.   Wherethe 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.

c.   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.

d.   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.

Where the contributions of both parties over time have resulted in an accumulation of wealth, unjust enrichment occurs when one party retains a disproportionate share of assets that are a product of their joint efforts following the breakdown of the relationship.  While the law of unjust enrichment does not mandate a presumption of equal sharing, the decision whether to award a party a proprietary interest or monetary payment must reflect the true nature of the enrichment and the corresponding deprivation.”

         Westlake v. Ellicock, 2022 ONSC 1980 (CanLII) at 34-35, 38-40

“It must be noted that “achieving the 40 per cent threshold does not necessarily mean that less child support will be paid, but only that the court can consider the issue under s. 9 of the Federal Child Support Guidelines” (Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169).

In fact, it is not that the “court can”, but rather, the court must proceed under s. 9 when the 40 per cent access threshold is achieved. It is clear from the wording of the legislation that s. 9 is imperative; therefore, when the court finds that a parent is exercising access or custody 40 per cent or more of the time, the court must fix child support in accordance with the three factors listed in s. 9 of the FCSG.

Under s. 9 there is no presumption that the Guideline support amount is appropriate. Rather, support is determined by applying the three factors, informed by the evidence provided by the parties.

The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997] O.J. No. 6335; Huntley v. Huntley, 2009 BCSC 1020, [2009] B.C.J. No. 1509). In this case that rests with the father.”

            L.L. v. M.C., 2013 ONSC 1801 (CanLII) at 19-22

“A useful summary of the test for whether there has been a material change in circumstances was set forth in the case of Poulter v. Poulter, 2005 BCCA 227 (B.C.C.A.) at para. 11 as follows:

The changes must be such that they were not known to the parties or to the judge at the time when the first final support order was made. Second, they must be such that they could not reasonably have been in contemplation of the parties or the judge. The third is that if they had been known, a different order would have been made than the one that was actually made. And fourth, that the different order would have been different in respect of the weight and consequences of the change and would have taken into account the change to make an alteration in the result.

In the case of Boston v. Boston, 2001 SCC 43 (S.C.C.) Major, J., writing for the majority, noted at para. 61 that on retirement, the pension-holding spouse may apply to vary a support order if his ability to pay support is compromised, and that the decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances.

A material change of circumstances will vary from one case to another, particularly in relation to foreseeability. Retirement from employment can be a change of circumstances even if it is clearly foreseeable: Stones v. Stones: 2004 BCCA 99, at para. 15. (See also Schulstad v. Schulstad, 2017 ONCA 95 (C.A.) at para. 31 and Arthur v Arthur, 2018 ONSC 6682 (S.C.J.) at para. 42)”

Lorimer v. Lorimer, 2020 ONSC 1923 (CanLII) at 44-47

“In D.B.S. the court identified four primary considerations:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

None of the above factors are decisive or take priority and all should be considered in a global analysis.   In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

In Michel v. Graydon 2020 SCC 24 the Supreme Court recently revisited these principles.  The commentary includes the following:

a.   Parents know they are liable to pay support in accordance with the Tables, based on their actual income.  They know they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic.

b.   The obligation to support your child exists even if the other parent has not (yet) started a court case.

c.   Retroactive child support is a debt.  It represents money that should have been paid.  Presumptively, the money is owing and should still be paid, unless there are strong reasons not to do so.

d.   Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations.

e.   The court must be aware of the gender and social dynamics which permeate child support law.   When we assess the reasonableness of actions and behaviours by support recipients – and the reality is that they are predominantly women – we must take into account all of their experiences, challenges, vulnerabilities, financial limitations, fears, danger, and perceptions as to their actual options.

f.   The neglect or refusal to pay child support is strongly linked to child poverty and female poverty.

g.   There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations.

 Michel v. Graydon refines the approach to be taken on the issue of delay:

a.   Rather than ask whether there was a “reasonable excuse” for any delay in bringing an application, the court should examine whether the reason for the delay is “understandable”.

b.   A delay, in itself, is not inherently unreasonable.  The mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.

c.   Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made.

d.   A delay is likely to be more understandable if it is motivated by any one of the following reasons:

1. 1. 1. 1. 1. Fear of reprisal/violence from the other parent.
            2. Prohibitive costs of litigation or fear of protracted litigation.
            3. Lack of information or misinformation over the payor parent’s income.
            4. Fear of counter-application for custody.
            5. The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
            6. Illness/disability of a child or the custodian.
            7. Lack of emotional means.
            8. Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
            9. Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
            10. The deliberate delay of the application or the trial by the payor.

e.   Delay by a recipient does not constitute a waiver or abandonment of a right to claim the appropriate amount of support which should have been paid.

f.   It is generally a good idea to seek child support as soon as practicable.  But it is unfair to bar parents from applying for the financial support they are entitled to, simply because they put their safety and that of their children ahead of their financial needs; or because they did not realistically have the ability to access justice earlier.

g.   Even if the delay is unreasonable, this does not negate blameworthy conduct by the payor.  Indeed, blameworthy conduct may have caused or contributed to the delay.

h.   Delay is not determinative.  It is one factor and should not be given undue weight.”

Abumatar v. Hamda, 2021 ONSC 2165 (CanLII) at 53-55

“All parties agree that the inability of J.T.’s biological parents to care for her directly engages the CYFSA.

The paramount purpose of the CYFSA, set out in s. 1(1), is to promote the best interests, protection, and well-being of children. The CYFSA sets out additional purposes that apply to all children in s. 1(2), such as supporting the autonomy and integrity of the family unit, using the least disruptive course of action, and individualizing services to a child in a manner that:

i.   respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment;

ii.   takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;

iii.     takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;

iv.    takes into account a child’s or young person’s cultural and linguistic needs;

v.    provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests; and

vi.    includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

Importantly, s. 1(2) of the CYFSA includes an additional purpose distinct to First Nations, Inuit and Métis peoples: wherever possible, they should be entitled to provide their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

“Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.

Customary care under the CYFSA

What is “customary care”? The concept is defined in s. 2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”. I note the use of the word “person” and not “agency” in this definition.

Customary care is the preferred approach for Indigenous children. Section 80 of the CYFSA requires a society to “make all reasonable efforts” to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child:

1. 1. 1. 1. 1. a.   is in need of protection;
            2. b.   cannot 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 or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and
            3. c.   is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

The practice of customary care arose as an alternative to court-related processes and court-ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities.

Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.

Like any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA. The child’s legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care: see Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen’s Printer for Ontario, 2013) (“MCYS Guide”).

Customary care does not operate outside judicial oversight. As Justice Wolfe noted in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become engaged where there is evidence of bad faith or improper procedure:

I find that the CYFSA does not include statutory timelines that need to be strictly enforced by courts regarding customary care. In choosing that path, the parties to a [customary care agreement] agree that it is in the child(ren)’s best interests to avoid adversarial child protection proceedings in Canadian courts. This is subject to evidence of bad faith or improper procedure which could render placements made out of court invalid. [Emphasis added.]

Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R., at paras. 68-69.”

M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240 (CanLII) at 30-40

“Subrule 7(5) of the Family Law Rules states that a court may make an order to add any person that should be added as a party.

The test for adding parties to a proceeding was set out in Noik v. Noik, 2001 CanLii 27970 (ON SC): can the issue between the applicant and the respondent be effectually and completely settled without the addition of the non-parties; and, will the relief sought by the applicant directly affect the non-parties?”

         Hill v. Green, 2022 ONSC 1789 (CanLII) at 13-14

“The burden of proof for setting aside a domestic contract is on the person alleging that the domestic contract is invalid. The party seeking to escape the effect of the agreement has the onus to show that there are grounds for setting it aside (see Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (Ont. C.A.), at para. 11, Loy v. Loy, [2007] O.J. No. 4274 (Ont. S.C.J.), at para. 161), Shair v. Shair, [2015] O.J. No. 4883 (Ont. S.C.J.) at para. 44).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract. It is desirable that the parties should settle their own affairs if possible, as they are more likely to accept their own solution to their problem than one imposed on them (Farquar v. Farquar, [1983] O.J. No. 3185 (Ont. C.A.), at paras. 19-20, Harnett v. Harnett, 2014 ONSC 359, [2014] O.J. No. 237 (Ont. S.C.J.), at paras. 87-88)).

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, supra,

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other, or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan. 2008 CarswellOnt 2738, ONCA.”

         S.(J.) v. S.(D.B.), 2016 ONSC 1704 (CanLII) at 27-29

“In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at 15, the Supreme Court described the doctrine of mootness as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.

The Court went on, at para. 16, to prescribe a two stage analysis in circumstances where a case may be moot:

16        The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.”

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 (CanLII) at 28-29