Month: October 2023

“Where, as in this case, it is alleged that the child cannot withdraw from parental control due to enrolment in an educational program, the court must carefully consider the child’s overall financial and daily living circumstances, and whether the child’s participation in the program is reasonably necessary in order for the child to achieve a level of self-sufficiency that is commensurate with the child’s interests and aptitude.  The case-law respecting entitlement to child support under the Divorce Act (R.S.C. 1985 c. 3 (2^nd Supp.), as am. provides valuable guidance respecting the factors that the court should take into account in deciding entitlement for adult children involved in ongoing studies.    Under the Divorce Act, a child of the relationship who is eighteen years of age or older and enrolled in post-secondary studies may be entitled to support if they are under parental charge and unable to withdraw from that charge or to obtain the necessaries of life.  The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child’s educational plan is reasonable taking into account the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents.  As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55 (CanLII), 2011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.”  The courts have outlined a number of factors which should be considered in answering this question.  The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4^th) 406 (B.C.C.A.)  Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 18 R.F.L. (4^th) 1 (Sask. C.A.),  Geran v. Geran, Supra.,  Rebenchuk v. Rebenchuk, Supra.,  Haist v. Haist 2010 ONSC 1283 (CanLII), 2010 83 R.F.L. (6^th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII), 2010 CarswellOnt 9344 (S.C.J.):

1. 1. 1. 1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
         2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
         3. The ability of the child to contribute to their own support through part time employment.
         4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
         5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
         6. The age, qualifications and experience of the child.
         7. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
         8. Whether the child is performing well in the chosen course of studies.
         9. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.  In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
         10. The means, needs and other circumstances of the parents and the child.
         11. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.  If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

The courts have held that it is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4^th) 435 (B.C. S.C.) at para. 11).”

            Meyer v. Content, 2014 ONSC 6001 (CanLII) at 32-33

“The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. (see Wilson v. Kovalev, 2016 ONSC 163.)”

            McIntyre v. Winter, 2020 ONSC 6259 (CanLII) at 23

“I would not accept the father’s argument that the motion judge lacked jurisdiction in the proceedings to make a temporary parenting order in favour of the mother and to order the enrollment of the mother and children in the Building Bridges program. The motion judge properly made those orders pursuant to r. 1(8). Specifically, r. 1(8) provides:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order it considers necessary for a just determination of the matter, including:

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

“As long as the judge is satisfied that there has been a failure to obey an order in a case or a related case’ subrule 1(8) is triggered” and the relief provided for therein can be ordered: Hughes v. Hughes, (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock, 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.

As a result, even though, with the notable exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) can be described as purely procedural, r. 1(8) has not been interpreted as being confined to purely procedural remedies. In Freedman v. Freedman, 2020 ONSC 301, at para. 20, for example, the court relied on r. 1(8) to give the applicant access to account information as well as exclusive authority to deal with insurance polices and off-shore accounts in order to prevent the respondent from dissipating these assets in an attempt to avoid compliance with court orders to make payments and asset disclosure. In Shouldice v. Shouldice, 2016 ONSC 1481, at paras. 17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental property so that support obligations that were being evaded could be enforced. In Sadlier v. Carey, 2015 ONSC 3537, at paras. 64-67, an order was made pursuant to r. 1(8) requiring the respondent to surrender his passport to the court to prevent his flight from the jurisdiction, and he was ordered to post security after he had been evading support orders.

Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott–Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8).”

            Bouchard v. Sgovio, 2021 ONCA 709 (CanLII) at 48-52

“We note that “indefinite” support simply means that the duration is not specified. The SSAGs stress that “indefinite” does not necessarily mean “permanent”. It only means that no time limit can be set at the time of the order or agreement: p. 28.”

            Burke v. Poitras, 2021 ONCA 703 (CanLII) at 18

“The appellant appeals from the order of Justice Nicholson dated October 12, 2018. Nicholson J. ordered interim without prejudice spousal support payable by the appellant husband as a term of an adjournment of a scheduled settlement conference.  The quantum of spousal support was based on the appellant’s 2017 T4.

…

The settlement conference never started. The time spent focused on the opposed adjournment and the terms for same. The order made is a term of an adjournment, not an order made on the settlement conference under R. 17(8).  While there were other options open including a costs order, making the return date of the settlement conference peremptory etc., the judge has a broad discretion as to the terms of an adjournment, particularly where, as here, one party is delinquent in his financial disclosure and that party is unfairly delaying the progress of the proceeding.”

          Creighton v. Creighton, 2019 ONSC 5706 (CanLII) at 1, 8

“In many cases where the court declined to make a therapeutic order, the court was not satisfied based on the evidence adduced that the proposed therapeutic intervention would be beneficial to the child (See for example Snider v. Laszlo, [2009] O.J. No. 5032, Silver v. Silver and E.H. v. O.K.).  The presence of a professional assessment or opinion clearly setting out the cause(s) of a child’s distress or the family’s dysfunction(s), and the means to address same, will go a long way in convincing the court to make the order, even in the context of a motion for temporary relief.

Therapeutic orders sought in the context of a motion, based on untested and contradictory evidence or without a professional assessment, may run the risk of not properly addressing the issues that they mean to resolve.  On the other end, delays in imposing therapeutic orders in situations of high conflict may increase the risks associated with unjustified rejection, estrangement and alienation.  In the presence of such family dysfunction, the longer a child or parent goes without therapeutic intervention and (as is often the case) without access, the more difficult it will be to repair the relationship (McClintock v. Karam, para. 34).

In Testani v. Haughton, Justice Jarvis J. stated that resistance to therapy was an important factor to consider, but that it was not the determining factor as to whether such an order should be made.  There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling.  The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage.

In more severe estrangement or alienation cases, courts have often imposed therapeutic orders despite the alienating parent’s strongly voiced objections to counselling or therapy (see L. (J.K.) v. S. (N.C.), McClintock v. Karam, C. (W.) v. E. (C.), Spencer v. Beier and Hazelton v. Forchuk).  Courts may also resort to “strong judicial recommendations” (without making an order) that the custodial or favoured parent engage in therapy and/or ensure a child’s regular and meaningful participation in same, failing which a change in custody will be considered.

Since children are not parties to the family law proceeding, courts do not have the power to make orders compelling them to engage in therapy or counselling.  However, courts can order parents, as custodians of their children, to ensure their timely attendance therein.  As stated in C. (W.) v. E. (C.), children do not always get to do whatever they want, nor do they always get to refuse to do things that they are otherwise required to do (see also Snider v. Laszlo, and McClintock v. Karam).

This being said, the older a child is, the less likely that he will meaningfully engage in a therapeutic process that is imposed upon him despite his clearly voiced refusal to do so.  When an older or more mature child is strongly objecting to a therapeutic process, it may be inappropriate to make the therapeutic order.  Such was the court’s conclusion in Sine v. Bannister (16 year old), in Karwal v. Karwal (17 year old), and in Mattina v. Mattina, 2017 ONSC 5704 (CanLII), affirmed at 2018 ONCA 641 (CanLII) (17, 16 and 10 year olds).

I am of the view that in ascertaining a child’s willingness to engage in a therapeutic process, the court should consider the following:

a.     How old is the child?

b.    Is there clear evidence about the child’s willingness/unwillingness to engage (or re-engage) in counselling?  (courts should be cautious when the only evidence of a child’s alleged strong resistance to therapy comes from the “favoured” parent)

c.    Are there ways in which a court could convince an older child to cooperate? (By involving a child’s counsel?  By offering an opportunity to meet with the judge? By any other means?)

If the court does exercise its discretion to make a therapeutic order, the therapist tasked with providing the service should be clearly identified or, alternatively, a judicially supervised process for the identification and appointment of such therapist should be clearly set out in the order.  There should also be close judicial monitoring of the parties’ ongoing compliance with the therapeutic order to ensure regular and meaningful participation by all parties involved.

With the greatest of respect for those who hold a different view, I am of the view that family courts do have an obligation – and a responsibility – to sometimes monitor such petty things as parties’ adherence to a therapeutic schedule.  That responsibility lies upon the court as a result of its duty to promote the best interests, protection and well-being of children.

The recognition that family litigants often need additional resources, assistance and judicial persuasion to settle their disputes was acknowledged and recognized by the codification of active case management in our Family Law Rules.  Court orders in family law cases, particularly those involving children, often fall on deaf ears when the case involves highly conflictual parents who have failed to put their children’s well-being above their dysfunctional relationships with each other.  The court has a duty to ensure that orders are promptly complied with and must be in a position to take swift actions if they are not, failing which children will undoubtedly suffer (excellent examples of such orders can be found in Berhanu v. Awanis, N.H. v. J.H., C. (W.) v. E. (C.), S.D.M. v. P.M., and Rea v. Rea).”

Leelaranta v. Leelaratna, 2018 ONSC 5983 (CanLII) at 72-81

“To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson [v. The Chartered Professional Accounts of Ontario, 2016 ONCA 806)], at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.”

            Bell v. Fishka, 2022 ONCA 683 (CanLII) at 13

“Clear direction was provided today to counsel for the Respondent as to what is required.

This court emphasized that just because counsel or opposing counsel may have previously filed voluminous materials, single spaced, fonts reduced, and with improper attachments – this does not mean that you can do so as a matter of practice or ought to do so at all.

Simply put, it is bad practice.

To then say ‘well I did it last month Your Honour’ is simply not an adequate explanation from an Officer of this Court.

Briefs are not supposed to be long. The word brief means brief. As Justice MacLeod-Beliveau was fond of saying, ‘Less is more in pleadings’.

Offers to Settle are not to be attached to Case Conference Briefs.

The list of permitted attachments is clear.

Generally speaking and to confirm by way of example, pages of texts and emails and offers and photos and character letters and screen shots are all examples of improper attachments.

The Practice Directions are not suggestions.  Without leave of the court the staff at the counter are expected by their employer to follow them. Counsel are as well. For the information of the parties and counsel in this case, and as conveyed today orally, the staff frequently bring problematic filings to the attention of the court and the court will permit such filings in the exercise of discretion in appropriate cases and does so often as called for by the individual case.

In situations where filings are chronically problematic, it becomes impossible to bring each and every one to the attention of the court. In such circumstances the situation may arise that strict compliance is the only option for counsel and parties. The relentless need to grant leave and indulgences regarding incorrect and improper filings is not workable nor reasonable.

In particular when counsel are on record, as an Officer of the Court, the expectation of the court is that the Rules and Practice Directions will be followed. Leave and indulgences may be granted when needed, on occasion and not as a matter of course. Mistakes and occasional oversights occur and will be considered by this court as needed and in light of the facts of the case and the nature of the breach.

A chronic pattern of inattention to Rules and Practice Directions will not be ignored by the court and allowed to form a new methodology of court process.”

          Bron v. Thompson, 2022 ONSC 5674 (CanLII) at 4-15

“Rule 31(5) of the Family Law Rules sets out the parameters for the consequences of a contempt finding. They are very broad, and include imprisonment, payment of a fine, paying an amount to a party as a penalty, payment of costs, and doing “anything else the court decides is appropriate”.  Consequently, it is helpful to consider what sanctions have been imposed by other courts in similar circumstances.

Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] O.J. No. 3019 (S.C.J.) outlines some of the factors to be considered, including the primary purpose of preserving the integrity of the administration of justice; denunciation of the conduct; deterrence; proportionality of the sentence to the wrongdoing; similarity of sentences in like circumstances; aggravating and mitigating factors; appropriateness of a fine; and appropriateness of incarceration.

The case of N.H. v. J.H., 2017 ONSC 4867, further outlines these considerations, including that a custodial sentence is not generally imposed for a first finding of contempt: at para. 610.

N.H. also has many similarities factually with this case.  It too involved a first finding of contempt. However, as is the case here, the breaching behaviour had gone on for some time. It was described as “serious and long standing” and had resulted in serious disruption to the relationship with the father (at para. 612). Mackinnon J. described the mother at para. 3 in ways that are similar to Ms. Smart – “[h]er mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations”. One of the children also suffered from a significant anxiety disorder, and as in this case, the mother arranged for counselling for the child without involving the father or seeking his consent, contrary to an order for joint decision making (paras. 577-581). As in this case, the mother relied on the defence of justification and of having made good faith reasonable efforts to have the children see their father, which defence was rejected.  The mother was found to be “not remorseful, rather appeared to be feel [sic] fully justified.” The experienced judge held: “She gave me no confidence that in future she would comply with an order she disagrees with”. One significant difference from this case is that the mother was a person of greater financial means.

In these circumstances, the sentence included a penalty component and a component for make-up time, in addition to costs on a full recovery basis. The penalty required the mother to contribute a total of $15, 000 to the RESP the father had set up for the two children. The make-up time extended the father’s time with the children on various occasions. While it was not part of the contempt sentencing order, an order was also made in that case requiring the mother to retain a behavioural therapist “with a view to changing her reactive behaviour”.

In Gagnon v. Martyniuk, [2020] ONCA 708, also a case with similarities to this one, the orders following the penalty hearing included an order that the mother comply with the order in respect of the father’s parenting time and that she enroll in a session for co-operative parenting. A fine was ordered to be paid to the father for each occasion that the mother missed one of the parenting program sessions or was late. The motion judge further indicated that the breach of those orders that lead to a second finding of contempt “shall result in further fines, or a period of incarceration, or both”.

The Court of Appeal held that this penalty was not improper and said the motion judge “demonstrated great restraint in penalizing the appellant’s flagrant contempt”: at paras. 23-26. It found nothing in the fine aspect of the order could be considered contrary to the best interests of the children: at para. 25. The court further held that the order that the mother comply with the order regarding the father’s parenting time was in the children’s best interests since it sought to prevent future disputes over parenting time.”

            Smart v. Belland, 2022 ONSC 5612 (CanLII) at 8-14

“An Arbitrator has an obligation to treat the parties fairly and equally under s.19 of the Arbitration Act.

In his Notice of Appeal, the father asserts that the Arbitrator was biased towards him which, in turn, resulted in a substantial miscarriage of justice. The father further states that he was unable to fully present his case, and that the Arbitrator erred in law by considering aspects of the mother’s evidence which the father perceives to have been irrelevant and inflammatory.

The test for a reasonable apprehension of bias is as follows. Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly, see Read v. Alto Properties Inc., 2019 ONSC 1451at para 33.

            Khan v. Khan, 2021 ONSC 8580 (CanLII) at 23-25