Month: May 2024

“A recent publication on parenting time by Professor Nicholas Bala and Dr. Rachel Birnbaum is entitled, “Focusing on Children in Post-Separation Parenting.”  The article considers arguments made in favour of a presumption of shared parenting (that it is more just and fair) and against such a presumption (that it puts victims of family violence at further risk of harm).  The Canadian government declined to include such a presumption in the recent Divorce Act amendments.  The authors support the government’s decision and disagree with the notion that family justice professionals act out of economic self-interest when they decline to support a presumption.  Instead, the researchers state as follows:

“Australia adopted such a reform in 2006, but abandoned it in 2012, as it resulted in increased litigation and endangered children. As in Canada, a majority of parents in Australia settle their cases, and many more make plans for shared parenting. But having a presumption in favour of shared parenting actually seemed to inflame the high conflict cases and cause more litigation. The problem with a legal presumption of shared parenting is that the cases where this is most relevant, those which are litigated, are atypical higher conflict cases….”

Professor Bala and Dr. Birnbaum highlight the importance of considering the views of children about post-separation parenting arrangements.

“Research suggests that most children appreciate having significant, continuing involvement with both parents, but that many resent the rigidity of parents who insist on “equal” parenting arrangements. Children want flexibility, especially when they reach adolescence. Most teenagers want a role in making arrangements that meet their evolving needs. Many adolescents want a significant relationship with both parents, but prefer having a “home base” rather than a division of their time in way that parents might consider “fair”.”

MacLellan v. Sidiropoulos, 2022 ONSC 2599 (CanLII) at 21-22

“Identifying the valuation date involves the determination of two issues: the date when the parties separated and the point in time when, as noted in s. 5(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation”.  Most often these two events are the same but where a dispute about the choice of a valuation date arises it is invariably financially driven due to the consequences of the date selected. In cases where, as in this case, the parties continued to reside under the same roof after an alleged separation event and there are, also as in this case, differences (even though modest) to their respective net family properties depending on the valuation date, caution must be exercised by the court before concluding that the marriage cannot be salvaged. In Newton v. Newton, (1995) 1995 CanLII 17875 (ON CJ), Czutrin J. observed:

… extreme caution should be exercised in fixing a valuation date.

Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added)

Separation and valuation dates are not necessarily synonymous terms. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell, 1992 CarswellOnt 306.  In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected an earlier January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”: Ibid, para 1. Those decisions must, however, be supported by the evidence: as per Locco J. in DiFrancesco v. DiFrancesco, 2011 ONSC 3844 at para 38.

A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart” and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic, 2019 ONSC 3857 at paras 12-26 and 32-40. In that case the parties disputed their date of separation: this impacted the determination of their net family properties. The husband claimed a date about three and a half years earlier than the wife’s date. Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, concluding that despite evidence that the parties, among other things, had travelled together with their children internationally and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose. Relevant to the analysis in the case before this court are the following observations:

… Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively.  In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other: Ibid, at para 39.”

          Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII) at 22-24