Month: June 2023

“The added complication: the father seeks a temporary variation of a final parenting order.  This requires that the court conduct an even more stringent analysis:

a.    In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order.  The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.    And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis.  If the general rule is that we are reluctant to change temporaryorders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order —  in the appropriate circumstances. Stokes v. Stokes2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.    But the evidentiary basis to grant such a temporary variation must be compelling.

f.    The court must start with the aforementioned two-part material change in circumstances analysis.

g.    But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.    The onus on the party seeking a temporary variation is onerous.  They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being.  They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i.    The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.    The court must be satisfied that the existing order has come to be demonstrably contraryto the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.    Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l.    And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.     On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril.  After that, priority switches to rescuing and protecting the child.  And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.”

         F.K. v. A.K., 2020 ONSC 3726 (CanLII) at 52

“The Supreme Court of Canada tackled the issue of retroactive spousal support in Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 (S.C.C.).  In that case, the court touched on the issue of the semantics around the word “retroactive,” and emphasized that the principles which the court established in D.B.S., Supra, were articulated in the context of claims for child support for periods predating the commencement of the legal proceedings.  The court referred to the Ontario Court of Appeal decision in MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 2005 CarswellOnt 1536 (C.A.), where the court held that the date of the initiation of court proceedings for spousal support is the usual commencement date for the support order, unless there is a reason for making the order commence on a different date.

With respect to retroactive spousal support claims, the court held that the four general considerations which it had articulated in D.B.S. are also relevant in deciding the suitability of a retroactive spousal support order. In D.B.S, the four factors that a court should consider before awarding retroactive child support include, the reason for the recipient parent’s delay in seeking spousal support, the conduct of the payor parent; the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship. However, it emphasized that retroactive spousal support cases must be analyzed within the framework of the unique legal principles and objectives that underlie the right to spousal support, which are very different from those which apply to child support. Specifically, it highlighted that the duty of both parents to support a child arises at birth, whereas there is no automatic entitlement to spousal support or obligation on the part of a spouse to look out for the other spouse’s legal interests.  In addition, it noted that child support is the right of the child rather than that of one of the litigants, and that the SSAGs have simplified the calculation of a parent’s support obligation.  Accordingly, the prejudice where retroactive relief is denied flows to the child rather than to the custodial parent.  The court’s analysis indicates that because of these different principles and objectives, concerns about a spousal support claimant’s notice of the claim and delay in pursuing it, and about misconduct, will generally carry more weight in retroactive spousal support cases.

With respect to the concern of payor spouses in retroactive claim cases about the recipient’s delay in pursuing relief, the Supreme Court noted in Kerr v. Baranow, Supra, that there are two important underlying interests at stake.  First, there is the payor’s interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly.   In regard to the issue of conduct, the court clarified that the focus must be on “conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure.” (Kerr v. Baranow, para. 212).  Consideration of the circumstances of the spousal support claimant must focus on that spouse’s needs both at the time the spousal support should have been paid and at present.”

         Outaleb v. Waithe, 2021 ONSC 4330 (CanLII) at 87-89

“The starting point is to consider income as reported in line 150 of the income tax return, pursuant to section 16. The purpose of this provision is for predictability and consistency and does not allow for consideration of lifestyle. This is the “presumptive income”. See: Bak v. Dobell, 2007 ONCA 304 (CanLII), [2007] O.J. No. 1489 (Ont. C.A.)

Section 17 allows for determination of income where such fluctuates year to year, rendering a section 16 consideration unfair. Here, the focus is on a pattern of income over the prior of three years. The analysis is not based on simply averaging incomes; rather, it allows for a departure from line 150. See: Decaen v. Decaen, 2013 ONCA 218; Mason v. Mason, 2016 ONCA 725; Punzo v. Punzo, 2016 ONCA 957; and Halliwell v. Halliwell, 2017 ONCA 349.

Imputing income under section 19 is based on fairness and where an adjustment is required to the presumptive income. See: Bak v. Dobell, supra.

The leading decision on imputing income is Drygali v. Pauli (2002), 29 RFL (5^th) 593 (Ont. C.A.), where the support payor had enrolled as a full-time university student. Gillese, J.A. addressed the prior inconsistent applications of section 19(1)(a) and provided helpful direction for trial judges. The following summarized the significant matters:

(a) The trial judge must consider three questions:

(i)   is the parent intentionally under-employed or unemployed?

(ii)      if so, is such required by reasonable education needs [or the needs of the child]?

(iii)      If not so required, what income is appropriate in the circumstances? (para. 23)

(b)“Intentionally” does not mean a deliberate course of conduct for the purpose of undermining a support obligation – there is no need to find such an intent, rather the reference is to a “voluntary” act to earn less than what the parent is capable of earning. (para.s 24-28).

(c) There is no requirement of bad faith (para.s 29-30).

(d)One of the objectives of the Child Support Guidelines is to establish a fair standard of support for the children to ensure they benefit from the financial means of the parents. (para. 31).

(e) Imputing income is one method to give effect to the joint and ongoing obligation of parents to support their children – to do so, a parent must earn what he or she is capable of earning. (para. 32).

(f)  When imputing income, a court must consider what is reasonable in the circumstances – factors include age, education, experience, skills and health of a parent. (para. 45).

See, also: Lavie v. Lavie, 2018 ONCA 10.”

H.G. v. J.R.N., 2022 ONSC 3436 (CanLII) at 67-70

“One of the Applicant’s arguments respecting imputation of income to the Respondent is that he has unreasonably deducted expenses from the income that he has generated from his rental property.  It follows from the foregoing general comments that a party who claims that business expenses are being unreasonably deducted from income has the burden of proving that the expenses are unreasonable (Szitas v. Szitas, 2012 ONSC 1548 (CanLII), 2012 CarswellOnt 3501 (S.C.J.); Desormeaux v. Beauchamp, 2009 CarswellOnt 747 (S.C.J.); Bekkers v. Bekkers, 2008 CanLII 864 (ON SC), 2008 CarswellOnt 173 (S.C.J.); Joy v. Mullins, 2010 CarswellOnt 7477 (S.C.J.)).   However, the parent who seeks to deduct expenses from their income for child support purposes must as part of their basic general disclosure obligation explain the reasons for the expenses and how they were calculated, and must provide documentary proof of significant expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation (Szitas; MacGillivray v. Ross, 2008 CarswellNS 631 (S.C.);  R.(P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (C.A.);  Manchester v. Zajac, 2011 CarswellOnt 13546 (S.C.J.); Williams v. Williams, 2011 CarswellOnt 6588 (S.C.J.);  Meade v. Meade, 2002 CanLII 2806 (ON SC), 2002 CarswellOnt 2670 (S.C.J.);  Wilcox v. Snow, 1999 NSCA 163 (C.A.) (CanLII);  Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.) (CanLII)).  This is particularly important in situations where the expenses reported on the party’s income tax returns fluctuate from year to year (Armstrong v. Armstrong, 2010 CarswellBC 3252 (S.C.)).  If the party seeking to deduct expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination (Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.);  Izyuk).

In order to impute expenses that have been deducted against income for tax purposes back into a parent’s income pursuant to section 19(1)(g) of the Guidelines, it is not necessary to establish that the party who claimed the deductions acted improperly or outside the norm for claiming expenses in the income tax context.  Section 19(2) specifically provides that the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).  Rather, the issue is whether the full deduction of the expense results in a fair representation of the actual disposable income that should be available to the party for personal expenses and child support (Halliwell v. Halliwell, 2017 ONCA 349 (C.A.) (CanLII)).    In determining whether expenses claimed by a party as against income are unreasonable, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of child support (Osmar v. Osmar, 2000 CanLII 22530 (ON SC), 2000 CarswellOnt 1928 (S.C.J.);  Izyuk).  In carrying out this analysis, the court must keep in mind the principle which the Supreme Court of Canada established in D.B.S. that payor parents should not be permitted to manipulate their financial affairs so as to prefer their own interests over those of their children.”

Roloson v. Clyde, 2017 ONSC 3642 (CanLII) at 207-208

“Applicant counsel argued that the court should require a motion to vary before helping the parties to resolve their disagreement as to whether the final order permits them to authorize another person to assist with pick-up and drop-offs required by the Access Schedule.

I do not agree. To require a further motion to vary in these circumstances, where the Court gave the parties notice and opportunity to be heard on this specific issue, would have been to create further process without purpose, causing further delay, cost and time to the parties and their children.

In my view, assisting the parties in this way is consistent with, if not required by, the primary objective identified in Rule 2(2) of Family Law Rules. The Ontario Court of Appeal in A.A. v. Z.G., 2020 ONCA 192 recently described “dealing with cases justly” to mean “ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity”. In order to achieve fair and expeditious resolutions, Rule 2 “specifically grants judges some procedural freedom” (at para 24).

Such freedom, elsewhere referred to by the Ontario Court of Appeal as  “great latitude”, enables a court, particularly in cases involving unrepresented litigants, to make such substantive orders, whether requested or not, as are  needed to effect a just and fair result between the parties: Titova v Titov, 2012 ONCA 864 (at para 48); see also Rule 25(19)(c).”

Medu v. Medu, 2020 ONSC 3696 (CanLII) at 44-47

“On its face, s. 16.1 of the Divorce Act unambiguously gives this court the power to make parenting orders with respect to an adult child who meets the definition of a “child of the marriage”.  In Perino v. Perino, 2009 CanLII 41900 (ONSC) (“Perino 2009”), at paras. 8 and 13, Justice Corbett held that a custody and access order could be made under the Act in respect of an adult.  In Ross v. Ross (2004), 2004 BCCA 131 (CanLII), 2 R.F.L. (6^th) 200 (B.C.C.A.), an application judge held that granting a parenting order in respect of a disabled adult child would infringe his rights as an adult, and that the court therefore did not have jurisdiction under the Divorce Act to make such an order. The B.C. Court of Appeal overturned this decision based on the clear language of the Act.

Ms. L. contends that, even if M. technically meets the definition of a “child of the marriage”, my ability to make orders with respect to him is confined to support orders.  She relies on the definitions of children in Ontario statutes governing parenting and support of the children of unmarried couples.  Under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), which governs parenting orders, a child must be a minor. Pursuant to 2020 amendments to the Family Law Act, R.S.O. 1990, F.3, which governs support orders, the definition of a child resembles that in the Divorce Act. As a result, if the parties had never married and Mr. R. was applying under the CLRA, M. could not be subject to a parenting order under Ontario law.  Ms. L. argues that the more limited definition in the CLRA acknowledges the inappropriateness of making a parenting order with respect to an adult child, and that it should inform my finding on jurisdiction under federal legislation.

The Ontario legislature’s decision to change the definition of child in the Family Law Act, but not the CLRA, does not allow me to disregard the plain language of the federal legislation that governs this application. The Divorce Act does not define a “child of the marriage” differently for the purpose of parenting orders and support orders.  This presumably reflects a deliberate legislative choice to give this court the power to make parenting orders with respect to individuals over the age of 18 who remain under their parents’ charge because they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

Ms. L. says that there is no firm authority in Ontario to make a parenting order with respect to an adult disabled person, as the caselaw focuses on support orders.  This is incorrect. Corbett J. ultimately decided not to make a “general custody order” in Perino v. Perino, 2012 ONSC 32 (“Perino 2012”), a case involving extreme parental alienation. He did however order access between Marisa Perino, a cognitively impaired adult, and her mother, having earlier found, in Perino v. Perino, 2008 CanLII 11048 (ONSC) (“Perino 2008”) that he had the jurisdiction to make such an order.

The court accordingly has the jurisdiction to make a parenting order with respect to an adult child who meets the definition of a “child of the marriage” in the Divorce Act.  Based on evidence relied on by both parties, M. is unquestionably such a child.  He remains in his parents’ charge and cannot withdraw from it due to his disability.”

J.F.R. v. K.L.L., 2022 ONSC 5067 (CanLII) at 11-15

“Section 39.4(3) of the CLRA addresses authorization of relocation and applies to interim motions such as the present one. It provides that, in determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24 of the Act, as well as the following factors:

a.   the reasons for the relocation;

b.  the impact of the relocation on the child;

c.   the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;

d.   whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

e.   the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

f.   the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

g.   whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

Hales v Lightfoot, 2022 ONSC 3517 (CanLII) at 19

“Section 7(1) of the CSG provides the court with the ability to provide for an amount to cover all or a portion of certain expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation. Contributions to an RESP do not fit into any of the categories of s.7 set out in s.7(1)(a) – (f).  While RESPs are savings vehicles, earmarked for post-secondary education for a child, they are not necessarily required to be used for that purpose. Parents cannot be compelled by a court order to contribute into an RESP, absent an agreement: see C.S. v. D.A.S., 2020 ONCJ 16, at para. 143; Popovski v. Pirkova, 2017 ONSC 2363, at para. 49; and Smith v. Smith, 2011 NSSC 269, at para. 80.”

         de Vasquez v. Mendoza, 2022 ONSC 3398 (CanLII) at 91

“It may well be that Suzanne Salga made the recording surreptitiously. She is alleged to have done that from time to time and she had a clear ongoing concern about the personal and financial relationship between her father and Ms. Marley. However, the unauthorized recording of a conversation does not make the evidence inadmissible, regardless of whether it was legal to do so. Therefore, I will consider it as part of the evidence of a course of dealing as a whole.”

         Marley v. Salga, 2019 ONSC 3527 (CanLII) at 39

“Our case law is clear that without a clear error of law or misperception of the facts, there is no basis for this court to interfere with a judge’s decision whether to grant an adjournment: see e.g. Khimji v. Danani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A. dissenting, but not on this point). This is especially the case in family law matters where motion and trial judges’ case management role is so crucial to the process.”

            Holly v. Greco, 2019 ONCA 464 (CanLII) at 9