Month: July 2023

“Additional guidance about supervision or termination of parenting time is provided by VSJ v. LJG 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.J.) (Blishen J.).

In that case, the court was considering whether a final order for supervised parenting time or termination of parenting time was in a child’s best interests. The court stated, at para. 128,

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.  To deny access to a parent is a remedy of last resort.

The court reviewed the case law and found that the factors most commonly considered by courts in terminating parenting time were:

1. 1. 1. 1. 1. Long term harassment and harmful behaviours toward the custodial parent causing that parent and the child stress and fear,
            2. History of violence, unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being,
            3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent,
            4. Ongoing severe denigration of the other parent,
            5. Lack of relationship or attachment between non-custodial parent and child,
            6. Neglect or abuse to a child on the access visits,
            7. Older children’s wishes and preferences to terminate access.

The court noted that none of the cases reviewed dealt with one factor alone.  In every case, there were a multitude of factors which had to be carefully considered and weighed in determining whether to terminate parenting time was in the best interests of a child.

The court continued, at para. 137,

As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination.  It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

The court noted, at para. 138, “Supervised access is seldom viewed as an indefinite order or long-term solution…There may be occasions, however, where medium or longer term supervised access is in the child’s best interests.”

The court then quoted Professor Martha Bailey’s article “Supervised Access: A Long Term Solution?” 37 Family and Conciliation Courts Rev. 478 (October 1999), wherein she said, at p. 480,

The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child.  The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.

The court continued, at para. 140,

In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship.  Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the access parent continually misses visits or is inappropriate during the access then termination must be considered…If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be a viable option.

The court also stated, at para. 149, “Although supervised access can continue on more than just a short term basis, it is never a permanent solution to access problems.”

            Tsagaris v. Kolovos, 2020 ONSC 4672 (CanLII) at 320-328

“The appellant also takes issue with what she refers to as the trial judge’s deviation from the “Rule of 65”, as set out in s. 3.3.3 of the SSAGs – that is, where the length of cohabitation in years plus the recipient’s age at the date of separation equals or exceeds 65, indefinite spousal support is appropriate: Climans v. Latner, 2020 ONCA 554, 449 D.L.R. (4th) 651, at para. 3.

Here again, the appellant’s position fails to consider the more nuanced explanations provided in the SSAGs. Section 7.5.3 of the SSAGs explains further:

The without child support formula provides that indefinite (duration not specified) support will be available even in cases where the marriage is shorter than 20 years if the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65. In a shorthand expression, we described this as the “rule of 65”. [Emphasis in original.]

The SSAGs make very clear at s. 13.8 that indefinite support is not permanent support:

Under the Advisory Guidelines duration of spousal support will be indefinite, under both formulas, where the parties have been married for 20 years or more, or where the “rule of 65” applies. But indefinite support, under the Guidelines as under the current law, does not necessarily mean that support is “permanent” or “infinite”, only that the duration has not been specified. We have purposely changed the language in this final version to convey that notion; our new terminology is “indefinite (duration not specified)”. Duration may be specified at some point in the future and support terminated, if entitlement ceases. [Emphasis added.]

Moreover, the SSAGs explain at s.7.5.3 that the Rule of 65 is, “intended to respond to the situation of older spouses who were economically dependent during a medium length marriage and who may have difficulty becoming self-sufficient given their age (emphasis added)”.”

         Politis v. Politis, 2021 ONCA 541 (CanLII) at 40-43

“However difficult it may be for her, the mother’s past, present, or current mental health cannot usurp the role she plays in ensuring the best interests of the children are met, both currently and in the long-term.

“It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means”: Stuyt v. Stuyt, 2009 CanLII 43948 (ON SC), 71 R.F.L (6th) 441 (ON SC), at para. 62. This is not just a parent’s duty to the court, but also to their children:”[i]t is also the role of parents to instil in their children a respect of the law and of legal institutions. A parent who does not do so does a disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life”: Stuyt, at para. 62.

In Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667, at para. 28, the Court of Appeal stated:

Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order.” [Citations omitted.]”

            M.P.M. v. A.L.M., 2022 ONSC 3775 (CanLII) at 124-126

“Sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common. A joint tenant has a prima facie right to an order for partition and sale unless the joint tenant opposing the sale can establish that the other party is seeking to do so for malicious, vexatious or oppressive reasons: Lalonde v. Agha, 2021 ONSC 5223.

An order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656. As the court stated in Hutchison-Perry v. Perry, 2019 ONSC 4381, at para. 37:

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…In such a case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order…or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced…[citations omitted]

The relevant considerations as summarized in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16 in the circumstances of this case are:

• • • • • Where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.
        • The court must consider the impact of a proposed sale on children or a vulnerable spouse, including emotional impact. The fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered.
        • Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.
        • The availability of a trial within a short period might reduce the pressure for an immediate sale.
        •  A request for a sale during summer months may entail some timeliness if seasonal market opportunities are favourable or to reduce the likelihood of a child having to change residence while a school year is in session.
        • The stage of a child’s academic progress may be relevant.
        • The mere existence of children in a household is not in itself sufficient to oppose a sale; the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents separate.
        • Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage.”

            Barber v. Stratton, 2022 ONSC 4376 (CanLII) at 10-12

“Breaches of a court order can constitute a material change in circumstances.  See: LW-A v. JC, 2017 ONCJ 741; Maloy v. Pantalone, 2021 ONSC 7734.

…

Worsening conflict can constitute a material change.  Wreggit v. Belanger, 2001 CanLII 20827 (ON CA); Hackett v. Sever, 2017 ONCJ 93.”

            Brethour v. Anderson, 2022 ONSC 4341 (CanLII) at 22, 25

“It would not be in Jesse’s best interests to force or attempt to force him to have contact with his mother or to undergo counselling.

As the Court of Appeal stated in De Melo v. De Melo, 2015 ONCA 598, at para. 12,

…court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements.”

            Ransom v. Dasti, 2020 ONSC 4526 (CanLII) at 47-48

“Inadequacy of reasons does not provide a free-standing right of appeal. Rather, an appellant who argues insufficiency of reasons must show not only a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of the right to appeal: see R. v. W.O., 2020 ONCA 392, 454 D.L.R. (4th) 54, at para. 13, aff’d 2021 SCC 8, 454 D.L.R. (4th) 51; Dovbush v. Mouzitchka, 2016 ONCA 381, 399 D.L.R. (4th) 69, at para. 22.

The question in every case is whether the reasons provide the basis for meaningful appellate review of the correctness of the trial judge’s decision. Trial judges are not held to an abstract standard of perfection. In evaluating a trial judge’s reasons, appellate courts must consider the time constraints and general press of business in the court: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.

In the context of busy family law trial courts, there must be a high bar for the insufficiency of reasons. This high bar is mandated by the primary objectives of the Family Law Rules captured in r. 2(3). This rule emphasizes saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving the case appropriate court resources while taking account of the need to give resources to other cases.”

         Ferguson v. Ferguson, 2022 ONCA 543 (CanLII) at 46-48

“In instances where a party has intentionally withheld disclosure or has provided less than candid and/or complete disclosure, the court may, in imputing income, draw an adverse inference against that party, see Meade v. Meade, 2002 CanLII 2806 at para. 81 and see also s. 23 of the CSG. The policy rationale behind this rule is that a party should not be allowed to benefit from the deficient record they have created or caused by their failure to comply with disclosure obligations. This rationale is all the more pressing where a spouse is self-employed, and a determination of the spouse’s true income is directly contingent upon the completeness and accuracy of the financial disclosure.”

         Jean-Gilles v. Paculanang, 2022 ONSC 4264 (CanLII) at 59

“The leading decision on the subject of gifting is Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795. In that decision, Rothstein J. confirmed that two presumptions, that is, the presumption of a resulting trust and the presumption of advancement, continue to have a role to play in disputes over gratuitous transfers. He said that the presumptions “provide a guide for courts in resolving disputes over transfers where evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive”: at para. 23.

The presumption of advancement does not apply in this case. Neither party suggests that it does. Rather, it is the presumption of a resulting trust that is in play. With respect to that presumption, Rothstein J. said, at para. 24:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is so because equity presumes bargains, not gifts. [Citations omitted.]

…

Accepting that is the case, one must examine the balance of the evidence to determine what the intention was with respect to the monies that Alex contributed to the purchase of the two homes. In considering that issue, the trial judge failed to address the central point that arises from the presumption, that is, the intention of the transferor, namely, Alex. Contrary to the respondent’s submission, it is not the intention of both parties that is relevant. This central point was made clear in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, where Cromwell J. said, at para. 18:

The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention“. [Emphasis in original.]

On this point, the nature of the onus or burden that rests on Ron, in terms of rebutting the presumption, is the civil standard of a balance of probabilities. In other words, Ron must establish, on a balance of probabilities, that it was Alex’s intention to gift these monies: Pecore, at para. 43. The standard of proof on a balance of probabilities requires “clear, convincing and cogent” evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

…

The trial judge erred in extrapolating from the fact of joint tenancy, entered into with the intention of Ron taking a right of survivorship in the homes, to a finding of an intention to gift Ron the funds contributed by Alex for the acquisition of the homes. The point that a right of survivorship alone is not sufficient to rebut the presumption of a resulting trust that operates during the parties’ joint lives is clearly made in Mark Gillen, Lionel Smith & Donovan W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012), at § 10.II.B.2 (WL):

If A supplies the purchase money and conveyance is taken in the joint names of A and B, B during the joint lives will hold his interest for A; B will also hold his right of survivorship—again by way of a resulting trust—for A’s estate, because that right is merely one aspect of B’s interest. In other words, the starting point is that B holds all of his interest on resulting trust for A, or A’s estate. However, evidence may show that, while A intended B to hold his interest for A during the joint lives, it was also A’s intention that, should he (A) predecease, B should take the benefit of the property. The presumption of resulting trust would then be partially rebutted, in relation to the situation that has arisen, so that B would not hold his interest (now a sole interest and not a joint tenancy) on resulting trust. He would hold it for his own benefit. [Footnote omitted.] [Emphasis added.]

To assert an “immediate gift” of the “beneficial ownership” of the funds contributed by Alex, Ron “must, in Rothstein J.’s words, ‘rebut the presumption of resulting trust by bringing evidence to support [his] claim’”: Bergen v. Bergen, 2013 BCCA 492, 52 B.C.L.R. (5th) 258, at para. 42, citing Pecore, at para. 41; see also Christopher v. Freitas, 2019 ONCA 84, at para. 5.”

         MacIntyre v. Winter, 2021 ONCA 516 (CanLII) at 17-18, 24-25, 33-34

“The court may make a secure treatment order provided that the criteria set out in s. 164(1) of the CYFSA are satisfied.  Section 164(1) provides:

Commitment to secure treatment: criteria

164 (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, within the 45 days immediately preceding,

i) the application under subsection 161 (1),

(ii) the child’s detention or custody under the Youth Criminal Justice Act (Canada) or under the Provincial Offences Act, or

(iii) the child’s admission to a psychiatric facility under the Mental Health Act as an involuntary patient, caused or attempted to cause serious bodily harm to themself or another person;

(c) the child has,

(i) within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or

(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death;

(d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person;

(e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

(f) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

Legal Principles

The parties referred to McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496, as the leading case in secure treatment applications.  Starr J. provides a helpful review of the key principles that govern these types of applications.  At para. 26, Starr J. writes:

1. 1. 1. 1. The loss of a young person’s liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;
         2. An order committing a child to secure treatment is to be considered as a remedy of last resort.
         3. The applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child’s wishes.
         4. To fulfill its onus the applicant must:
            1. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met.
            2. direct evidence from the psychiatrist whose opinion evidence resulted in the child’s admission.
         5. The court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.
         6. The evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.
         7. The court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;
         8. The court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in subsection 164(1) (secure treatment applications) and ss. 167(1) (extension applications) have been met.
         9. The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.

Regarding criteria (b) and (c) of s. 164(1) of the CYFSA, there is an additional legal principle to consider.  There must be a nexus between the mental disorder and the act of causing serious bodily harm or attempt to cause it: McMaster, at para. 62.

The court retains the discretion not to make a secure treatment order if it is not in the child’s best interest, even if the criteria are satisfied: McMaster, at para. 9.”

         L.M.L.B. v. L.M.B., 2022 ONSC 4194 (CanLII) at 11-14