Month: May 2023

“The courts have taken various approaches as to how child support should be determined in cases involving children who attend school away from home for all or a part of the year.  A review of these cases reveals that typically, the closer the circumstances of the child are to those upon which the standard Guidelines approach is based, the more likely it is that the standard approach set out in section 3(1) of the Guidelines will be applied: see Weseman v. Wesman (1999), 1999 CanLII 5873 (BC SC).  The various approaches adopted by the courts include the following:

1. 1. 1. 1. 1. In some cases, the courts have determined that the appropriate approach is to calculate the actual costs of providing for the needs of the child during the entire year, factoring in a contribution towards the costs to the recipient of maintaining a residence for the child to return home to on weekends and during the summer, and apportioning the amount between the parents after taking into account the appropriate amount that the child should contribute: see for example Merritt v. Merritt, 1999 CarswellOnt 1471 (Ont. S.C.J.).  Other courts have adopted the same approach, without adding in an amount for the cost to the recipient of maintaining a home base for the children: see for example Johnson v. Johnson, [1998] B.C.J. No. 1030 (B.C.S.C.).
            2. Some courts have made what can be described as “bifurcated orders,” ordering the Table amount for the period of time when the child is residing with the recipient, and directing the parents to each pay a share of the child’s total expenses for the remaining months of the school year, including both living expenses and education expenses, reduced by the appropriate amount of the child’s contribution: see for example Bertram v. Murdock, 2006 CarswellOnt 1394 (Ont. C.J.); Calder v. Purdy, 2005 CarswellNS 521 (N.S.S.C.).
            3. Other courts have adopted the approach set out in subsection 2 above, with the exception that they have also factored in the recipient parent’s costs of maintaining a residence for the child to return home to during the summer and for holidays: Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CarswellOnt 4863 (Ont S.C.J.);  approved of in Marsh v. Jashewski, 2011 CarswellOnt 6196 (Ont. S.C.J.).
            4. The trial judge in Lewiadopted the approach outlined in subsection 2 above, with the exception that she pro-rated the total Table amount payable for the period of time the child would be residing with the recipient during the year over the course of twelve months.   The Ontario Court of Appeal in Lewi determined that this approach would have been appropriate if it had been taken globally pursuant to section 3(2)(b) rather than as a two step analysis involving the determination of an appropriate Table amount and then a section 7 analysis, as the trial judge had done.  It is significant, however, that the court commented that this approach may not be the most appropriate from the perspective of the recipient, in that it fails to recognize the ongoing costs to the recipient of maintaining a home for the child to return to during the summers and other holiday periods.  Thus, the court endorsed the possibility that where the full Table amount of child support is ordered for the time that a child is at home while attending post secondary education, it may be appropriate for the recipient to also receive not only a contribution towards the child’s expenses during the school year but also a contribution towards the cost of maintaining their own residence as a home base for the child.
            5. In other cases, the courts have ordered the Table amount for the months when the child is home during the summer, a specified percentage of the Table amount each month for the months when the child is away at school for the recipient to cover the child’s living needs, and a proportion of the child’s education expenses (i.e. tuition, residence, books and supplies).”

Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII) at 176

“The jurisdiction of the Superior Court to grant an interlocutory injunction is found under s. 101 of the Courts of Justice Act. A Mareva injunction is a “drastic and extraordinary” remedy, one only granted when very strict terms are met. As Favreau J. explained in Paveau v. Ferreira, 2018 ONSC 1573:

46  A Mareva injunction is available to freeze the defendants’ assets where there is a risk that the assets will be moved or dissipated to avoid judgment. It has been described as a “drastic and extraordinary”. It is recognized as extraordinary relief because the courts do not generally grant judgment before a determination of the merits of a claim [References omitted].

The test for granting a Mareva injunction is stricter than the one for an ordinary injunction. That test is explained and described by Perell J. in O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67 as follows:

67  Because procedural law disfavours pre-judgment execution, to obtain a Mareva injunction, a plaintiff must satisfy the normal criteria for an injunction and also several additional criteria. For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment. A Mareva injunction should be issued only if it is shown that the defendant’s purpose is to remove his or her assets from the jurisdiction to avoid judgment. The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction. Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.”

Cummings v. Cummings, 2020 ONSC 3093 (CanLII) at 66-67

“Rule 24(2) of the Family Law Rules, O. Reg. 114/99 provides that the presumption that a successful party to litigation is entitled to costs does not apply in the context of a child protection case. However, this does not mean that a child protection agency is immune from having to pay costs. As correctly pointed out by the motion judge:

[T]he starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children. Costs will generally only be awarded against a children’s aid society in circumstances where the public at large would perceive that the society has acted in an unfair and indefensible manner. A society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome. That said, the society is not exempt from costs, which may be imposed on it where it has acted unreasonably. If a society acts unreasonably in the conduct of its litigation, it should enjoy no special protection as to costs.”

Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379 (CanLII) at 21

“The wife has provided a valuation of her business interests as at the date of separation. However, she has excluded the value of business interests that she claims were gifted or inherited by her during the marriage. In Hamilton v. Hamilton, 1996 CanLII 599 (ON CA), Osbourne, J. explained that in determining a spouse’s net family property,

“The first step required by s.4 is to identify all relevant property. Then ownership has to be determined. At this stage, trust principles may be brought to bear such that ownership of property for net family property purposes is deemed to be different from that which may be recorded in a title document. Once the ownership of property is established, the value of the property at the valuation date must be determined.

Next, the court must determine the relevant deductions and exclusions under s. 4(1) and 4(2) of the Family Law Act. When that exercise is complete, the court calculates each spouse’s net family property and then, following the Act, determines the required equalization payment to be paid by one party to the other. It is at this point that the court considers whether to reduce or eliminate the equalization payment by resort to the provisions of s. 5(6) of the Act.”

The wife is required, therefore, to value her excluded assets. The usual course with respect to excluded property (e.g., inherited property) is to include it all and “back it out” later as the form provides. It does not follow that because property is excluded, i.e., not part of net family property and subject to equalization, that there is no disclosure obligation. In addition, this property may well be relevant for the purpose of the determination of spousal support: Citron v. Citron: 2008 CanLII 71525 (ONSC), at para. 5.”

            Nemetz v. Reiter-Nemetz, 2022 ONSC 2825 (CanLII) at 67-68

“The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

The current provision of Divorce Act, is more direct:

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.”

         Knapp v. Knapp, 2021 ONCA 305 (CanLII) at 30–34

“The finding of contempt was made on April 8, 2016. For reasons that are not apparent from the record, the court has not yet held the sanction hearing. Although the appeal from a finding of contempt is governed by the timelines set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (see Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 212 D.L.R. (4th) 309 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 263), the appeal is usually not heard until the sanction has been imposed. The appeal of the sanction, if one was imposed and is under appeal, is then joined with the contempt appeal. As explained by Sharpe J.A. in Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757 (CanLII), 286 O.A.C. 273, at para. 9, a contempt proceeding has only come to a final conclusion once the sanction has been imposed. Until the motion judge has disposed of the motion, including the sanction, the appeal court will not know how serious the motion judge considered the contempt to be or how the judge intended to bring about compliance or punish the contemnor. In the words of Sharpe J.A., “[t]hese are elements integral to the nature and character of the contempt proceeding and essential to an appellate court’s full appreciation of the disposition under appeal”: at para. 9.”

            Ruffolo v. David, 2019 ONCA 385 (CanLII) at 5

“In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

1. 1. 1. 1. 1. Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
            2. Nor are we swayed by rhetoric against the other party that verges on agitprop.
            3. Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
            4. Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
            5. Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
            6. Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
            7. A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
            8. Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
            9. Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
            10. One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
            11. While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.”

         Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII) at 108

“It is frequently observed that assessing costs is not a simple mechanical exercise of tallying hours and applying an hourly rate: Delillis v. Delillis and Delillis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (Ont. S.C.). I agree with A.J. Goodman J. who, in Miziolek v. Miziolek and Miziolek, 2018 ONSC 4372 observed that;

[32] There must be practical and reasonable limits to the amounts awarded for costs and those amounts should bear some reasonable connection to the amount that should reasonably have been contemplated.  I note that it is not necessary for me to have to go through the hours, or disbursements, line by line, in order to determine what the appropriate costs are.  Nor is the court to second-guess the amount of time claimed unless it is clearly excessive or overreaching.  I must consider what is reasonable in the circumstances, and all the relevant factors.  However, when appropriate and necessary, a court ought to analyze the Bill of Costs in order to satisfy itself as to the reasonableness of the fees and expenses submitted for consideration.”

Reynolds v. McCormack, 2020 ONSC 2813 (CanLII) at 7

“The Applicant Grandmother’s claim is grounded in s. 21(3) of the Children’s Law Reform Act, which provides that any person, including a grandparent, may apply to a court for a contact order with respect to a child.  “Contact” is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time”.

Section 24 of the CLRA directs the Court, when considering or making a contact order, to consider only the best interests of the child.   In doing so, the Court is to consider all factors relating to the circumstances of the child, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 24(3) enumerates several other factors that Courts should consider when assessing the best interests of a child.  The significance and weight placed on any given factor varies from case to case, as each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts: Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

In Chapman v. Chapman, the Court of Appeal for Ontario recognized parental autonomy to make decisions in the best interests of their children in the following terms:

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them: 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 at para 21. [Emphasis added]

The Court of Appeal also recognized that loving and nurturing relationships with extended family members are generally important to children because they serve to enhance the emotional well-being of children. As such, where those relationships are interfered with arbitrarily, Courts may intervene to ensure the continuity of the relationships.

In Torabi v. Patterson, Justice Marvin Kurz summarized the factors to be considered by the Court when assessing whether the relationship between a child and a relative seeking contact is a positive one as follows:

1. 1. 1. 1. 1. There must generally be a substantial pre-existing relationship between the relative and child.  Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
            2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
            3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
            4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access: 2016 ONCJ 210 at para 74.”

Debassige v. King, 2022 ONCJ 210 (CanLII) at 14-19

“The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, is governed by the following principles:

1. 1. 1. 1. A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5
         2. There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”.  “Malice” arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as “vexatious” when it is taken to harass or oppress others rather than to assert a legitimate right.   The sale of a matrimonial home is “oppressive” when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald(1976), 1976 CanLII 845 (ON SC), 14 O.R. (2d) 249 (Div. Ct.), at p. 254.
         3. Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”).  In such case, an application under the Partition Actshould not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).
         4. The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property:  see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15”

Sanvictores v. Sanvictores, 2022 ONSC 2673 (CanLII) at 13