Month: September 2023

“As this court stated recently in Krebs v. Cote, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, “[p]arties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.”

To this end, under Ontario law, there is a high bar to set aside a domestic contract that complies with the enforceability requirements of s. 55(1) of the FLA: namely, that it is made in writing, signed by the parties and witnessed.”

            Li v. Li, 2021 ONCA 669 (CanLII) at 46-47

“Section 7 of the Guidelines defines “special or extraordinary expenses”.  The relevant portions of the section provide:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, 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 the separation:

…

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

In Titova v. Titov, 2012 ONCA 864, at para. 23, Rouleau J.A. set out the correct approach to be taken by a court under s. 7:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

No issue has been raised by Ms. Craig with Mr. Niro’s position that the parties’ pro rata shares should be the same as those set out in the July 2019 order or that anything other than the incomes upon which the October 2020 order was based should be used to decide the s. 7 issues.

Rather, Ms. Craig submits that neither the son’s moving expenses nor the daughter’s hockey expenses are extraordinary. With respect to the son’s expenses, however, this is irrelevant. As s. 7 itself and the excerpt set out above make clear, there is no requirement that post-secondary education expenses be extraordinary. Nonetheless, to qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In my view, that can only be true where the expense in question is not one that would otherwise have been incurred.

On this basis, I have no difficulty concluding that the expenses associated with the purchase of furniture, appliances, food, toiletries and even “shower flip flops” are all properly characterized as post-secondary education expenses for a temporary residence being shared with someone else while at university. The same can be said for the cost of a hotel room for a night or two while a student’s belongings are being moved into a temporary residence and for restaurant meals while this is being done.”

            Craig v. Niro, 2022 ONSC 5178 (CanLII) at 21-25

“Provincial fraud provisions are remedial in nature and their purpose is to ensure that creditors may set aside a broad range of transactions involving a broad range of property interests, where such transactions were effected for the purposes of defeating the legitimate claims of creditors (Ramgotra (Trustee of) v. North American Life Assurance Co., 1996 CanLII 219 (SCC), [1996] 1 S.C.R. 325, at para. 59).

The relevant legislative provisions applicable to Ms. Van Westerop’s motion for relief are found in the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and more specifically in sections 1 to 4:

Definitions

1. 1. 1. 1. 1. In this Act,

“conveyance” includes gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise;

“personal property” includes goods, chattels, effects, bills, bonds, notes and securities, and shares, dividends, premiums and bonuses in a bank, company or corporation, and any interest therein;

“real property” includes lands, tenements, hereditaments and any estate or interest therein.

Where conveyances void as against creditors

1. 1. 1. 1. 2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

Where s. 2 does not apply

1. 1. 1. 1. 3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section.

Where s. 2 applies

1. 1. 1. 1. 4. Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser.

Were the transfers of Mr. Van Westerop’s ownership interests in Policies no. 159-7, 670-3 and 579-5 fraudulent conveyances?

The cash surrender value in each of the three policies owned by Mr. Van Westerop on the lives of his children (“the children’s policies”) is personal property as defined by s. 1 of the Act.  The transfer of each of these policies by Mr. Van Westerop to each of his children was a conveyance as defined in s. 1 of the Act.  No consideration was paid by any of the children, who were fully aware, at the time they received ownership of these policies, that their mother was seeking to enforce her judgements against them.”

Van Westerop v. Van Westerop et al., 2022 ONSC 5406 (CanLII) at 27-29

“In Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32,  Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions.  This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not.  Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse.  If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion.  To do this properly, the court will need to have the parties’ cases before it.

The guidance that the Supreme Court gave in Hryniak as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system applies equally to how Rule 16 should be applied in the family law context. Karakatsanis J., on behalf of the Supreme Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case.  At para. 49, she stated:

 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Karakatsanis J. held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), (similar to Family Law Rule 16(6.1) with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

…Proportionality is assessed in relation to the full trial.  It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial.  This would involve a comparison of, among other things, the cost and speed of both procedures….It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Para. 57)

If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the powers under Rule 16(6.1), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

If a genuine issue is found, Rule 16(6.1) empowers the court to determine if a trial can be avoided by:

               (1) weighing the evidence;

               (2) making credibility findings on the evidence; and

               (3) drawing reasonable inferences of fact from the materials filed.

In the alternative, the Court may also direct a mini-trial or focused hearing under Rule 16(6.2) for any issues remaining on the motion for summary judgment.

A partial summary judgment will be ordered when it is clear that bifurcating the issues would result in a more expeditious, cost-effective, and just conclusion of the matter, having regard to Rule 2(2) of Family Law Rules, which prevides that the purpose of the Rules is to “enable the court to deal with cases justly”: Milne, supra, at paras. 89-90; Rules, Rule 2(2).”

            Shalaby v. Nafei, 2022 ONSC 5615 (CanLII) at 41-46

“Again, the question is whether to increase the Respondent’s access.  To my mind, the Applicant’s resistance to any increase at all appears to be, for whatever reason, punitive.  While she has clearly convinced herself that she is the only one who can adequately for the child, that the Respondent is incapable of doing so, and that there can be no disruption to the current breastfeeding schedule, there is just no other way to explain or characterize her staunch intractable position.  I appreciate the child is being breastfed – which is a factor I must consider (and weigh against the need to foster a loving relationship between the child and Respondent) – but the Applicant’s complaints otherwise ring hollow.  On the breastfeeding issue specifically, I am aware of no case that stands for the proposition that it should overwhelm any other relevant factor.  It is a factor, but one amongst many.

To the question of caring for young pre-school children generally, the authorities filed by the Respondent were most helpful.  While Applicant counsel ably drew distinctions between those cases and the matter at hand, there are still several passages that have relevance to the issues I must grapple with.  For example, in Huess v. Surkos, 2004 CarswellOnt 3517, at para. 30 Spence J. writes that:

30.    I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children.  What I glean from these cases are the following principles:  First, it is important to maximize the contact between access parents and young children.  Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish.  Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits.  And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.

The Saskatchewan Court of Queen’s Bench in Lygouriatis v. Gohm, 2006 CarswellOnt 448 takes a similar view, rejecting the idea that, in that case a three month old child, was not “ready” to spend overnight visits away from her primary residence.  Wilson J. cites Joan Kelly and Michael Lamb’s work in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” published originally in the Family and Conciliation Courts Review, where the authors write:

Such unnecessarily restrictive and prescriptive guidelines were not based on child development research and, thus, reflected an outdated view of parent-child relationships.  Furthermore, such recommendations did not take into account the quality of the father-child or mother-child relationship, the nature of both parents’ involvement, or the child’s need to maintain and strengthen relationships with both parents after separation.  Research and experience with infant day care, early preschool, and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized.  Indeed, a child also thrives socially, emotionally, and cognitively if the caretaking arrangements are predictable and if parents are both sensitive to the child’s physical and developmental needs and emotionally available.

The evening and overnight periods (like extended days with nap times) with non-residential parents are especially important psychologically not only for infants but for toddlers and young children as well.  Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide.  These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.”

            Holomey v. Hillis, 2020 ONSC 6299 (CanLII) at 17-19

“The purpose of the PBA was commented upon in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 38, as being of vital importance to long-term income security:

The Act is public policy legislation that recognizes the vital importance of long-term income security. As a legislative intervention in the administration of voluntary pension plans, its purpose is to establish minimum standards and regulatory supervision in order to protect and safeguard the pension benefits and rights of members, former members and others entitled to receive benefits under private pension plans[.]

Adrianna points to this “long-term income security” purpose of the PBA as antithetical to the appellant’s position. After all, once someone has died, there is no longer a need for income security. The difficulty with this approach – with this singular emphasis on the purpose of the PBA – is that it ignores the equally important legislative context of the FLA. The answer to this appeal lies at the intersection of these two pieces of legislation.

The equalization provisions within the FLA serve a very different purpose from the PBA, as reflected in the preamble to the FLA:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children[.] [Emphasis added.]

If the sharing of in-pay pension payments cannot continue to an estate, in many cases, dividing pension payments at source would lose force as a proxy for what would otherwise be entitlement to equalization of net family property under ss. 5(1), 7(1), and 9(1) of the FLA. This would be particularly true in situations like this one where, from an actuarial perspective, the retired member spouse’s life is likely to be long, but the non-member former spouse’s life is predicted to be short.

As before, s. 5(1) of the FLA provides that, when spouses separate and there is no reasonable prospect of resuming cohabitation, “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.” Section 9(1)(a) of the FLA allows the court to order one spouse to pay the other the amount to which that spouse is entitled under the equalization regime. The idea here is that the value of property accumulated during the marriage partnership, in which spouses are assumed to have been equal partners, should be shared equally when that marriage ends. This includes the accumulation of a pension over the course of a marriage.

It is true that pensions have been referred to as “sometimes elusive assets for equalization purposes, being in reality a right to a future stream of income, rather than a current and exigible fund”: Kendra D.M.G. Coats et al., Ontario Family Law Practice 2020, Volume 2 (Toronto: LexisNexis Canada, 2019), at p. 537. It is because of the elusive nature of the pension that a new regime was introduced in 2009 to address these difficult issues. At the same time, the FLA was amended so that the family law value of an Ontario-regulated pension would be determined by the pension administrator pursuant to a formula set out in the regulations to the PBA: see FLA, ss. 4(1)(c), 10.1; PBA, s. 67.2. Section 67.2(1) reads:

The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse.”

Meloche v. Meloche, 2021 ONCA 460 (CanLII) at 100-105

“The parties agree that the governing precedent is the Supreme Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The elements of the test are that there is a serious issue to be tried, the applicant will suffer irreparable harm if the relief is not granted, and the balance of convenience favours the granting of relief.

This court has put a gloss on the application of the test in RJR-MacDonald where a stay is sought pending appeal. In Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448, [1998] O.J. No. 1824 (C.A.) Robins J.A. said, at para. 5:

In determining whether a stay should be granted, regard must be had to the judgment under appeal and a strong case in favour of a stay must be made out. The court must proceed on the assumption that the judgment is correct and that the relief ordered was properly granted. The court is not engaged in a determination of the merits of the appeal on a stay application.”

The Public Guardian and Trustee v. Zammit, 2021 ONCA 648 (CanLII) at 2-3

“The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v R.S.C. (2019) ONCJ 381 at para. 208; CAS v J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.

The dilemma, of course, is that the father has not provided financial disclosure to allow the court recalculate child support and the mother has been unable to obtain any information to support her request for income to be imputed at $85,000. On the other hand, child support is the right of the children. The children should not be penalized by the father’s non-compliance with the law requiring him to provide his income information upon receipt of the mother’s application to this court for an order of child support: r. 13 FLR and s. 21(2) Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines, SOR/97-175, as am.

As a result of the father’s failure to file a response including his income information, the matter was set down for a hearing. In such circumstances, the court may draw an adverse inference against the spouse who failed to comply with the financial disclosure and impute income to that spouse in such an amount as it considers appropriate: ss. 19 and 23 Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines.

According to the 2019 Agreement, the father’s income in 2019 was $62,000. There is no evidence before me that the father is no longer employed as the mother continues to receive support from FRO. In the absence of information about what exactly the father does, it is difficult to determine what the average wage increases have been for the father’s profession to impute an income consistent with that wage increase.

This court is not entitled to impute an arbitrary amount of income to the father. Such an approach would be unfair: Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 at paras 20 and 21; Staples v Callender, 2010 NSCA 49 at para 21. On the other hand, the children’s right to child support should not be undermined by the father’s failure to comply with his financial disclosure obligations and unwillingness to engage in court proceedings. For this reason, I find that a fair and reasonable approach would be to impute the father’s income to be consistent with the increase in cost of living since 2019.”

         El Himili v. Benmoussa, 2022 ONSC 5311 (CanLII) at 24-28

“The husband is clearly entitled to spousal support.  It is not necessary at this juncture to more comprehensively analyze the husband’s entitlement.  In Knowles v. Lindstrom, 2015 ONSC 1408 (CanLII), 57 R.F.L. (7^th) 402, Penny J. observed at para 8, (as most recently followed by MacKinnon J. in Bridge v. Laurence, 2016 ONSC 5075 (CanLII)),

[18] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case.  Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.  These tasks are for the trial judge.  Orders for interim support are based on a triable or prima facie case.  An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (CanLII), 2012 CarswellOnt 14841 (ONSC) at para. 24”

Testani v. Haughton, 2016 ONSC 5827 (CanLII) at 22

“As to Mr. Graydon’s conduct as the payor parent in this case, it is really this simple. When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur. And as this Court recognized in D.B.S., “courts are not to be discouraged from defending the rights of children when they have the opportunity to do so” (para. 60).

Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA, results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.

Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34). And yet, payor parents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47‑49). The payor parent’s obligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non‑disclosure.”

            Michel v. Graydon, 2020 SCC 24 (CanLII) at 31-33