Month: April 2025

“Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the court “shall make a final order” if there is no genuine issue of a claim or defence requiring trial. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.

Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; see also Phillion v. Phillion, 2015 ONSC 4255.

In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.”  The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences to resolve claims without the need for a trial.

The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment 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”: Hryniak, at para. 49.

The determination of a motion for summary judgment involves a two-step approach. The judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. However, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.

On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. Both parties must put their “best foot forward”, and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

In this case, the Respondent must establish that there is no genuine issue requiring trial in relation to the Applicant’s claim that the Separation Agreement ought to be set aside in its entirety, or in part. If he does, then the onus shifts to the Applicant to demonstrate that there is a genuine issue requiring a trial based on competing evidence that throws material facts into dispute, the assessment of which should be deferred to a trier of fact because, for example, assessment of credibility is warranted.”

          Haier v. Haier, 2024 ONSC 2102 (CanLII) at 22-28

“The change of a child’s name is dealt with in s. 5 of the [Change of Name, R.S.O. 1990, c. C.7] Act. The Act allows a person with “lawful custody” to apply to the Registrar General for a name change. Subsection 5(2) states who must consent to the application. Subsection 5(4) provides that if the required consent cannot be obtained or is refused, the person seeking the change can apply to the court for an order dispensing with that consent.

The relevant parts of s. 5 are set out below.

5 (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,

(a)  the child’s forename or surname or both; or

(b)  the child’s single name, if the child has a single name.

(1.1) Subsection (1) applies to a person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b)  a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made.

 (2) The application under subsection (1) requires the written consent of,

(a)  any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

(c)  the child, if the child is twelve years of age or older.

…

(4) If the required consent cannot be obtained or is refused, the person seeking to change the child’s name may apply to the court for an order dispensing with that consent.

(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child.

(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child.

…

The Act does not provide the father with a statutory pathway for changing the child’s surname. Under the Vallee order, the mother has sole custody of the child. While she is required to consult with the father on all major decisions, her decision prevails. Of note, the father is not seeking to change the Vallee order.

Under the Act, only a person with “lawful custody” can apply to the Registrar General for a change of name. The father does not have custody nor any decision-making power under the Vallee order. As an access parent, he cannot rely on this Act to seek a name change.

As stated in Felix v. Fratpietro (2001), 2001 CanLII 37828 (ON SC), 13 R.F.L. (5th) 54 (Ont. S.C.) at para. 22: “[t]he cases are clear that a name change is an incident of custody. That is made abundantly clear by virtue of the Change of Name Act itself which requires consent from a custodial parent, but only notification to an access parent.”

Furthermore, the father is not a person whose consent is required under s. 5(2), assuming the mother had applied for a name change.

The only reference in s. 5 to an access parent is found in s. 5(6). This subsection provides that the access parent has a right to be given notice of any application for a change of name.”

          Bova v. Vandervliet, 2021 ONSC 2524 (CanLII) at 13-19

“As is often observed, the assessment of credibility is not an exact science: Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8^th) 269, at para. 42.  In M.K.-C. v. C.C., 2023 ONSC 7097: also Smith v. Noel, 2023 ONSC 6682, at para.12., McGee J. dealt with credibility where there were suggestions that evidence was tailored, ignored or unreliable.

[55] Credibility and reliability are related but distinct concepts. Reliability speaks to the accuracy of the witness’ ability to accurately observe, recall and recount the events in issue.  Credibility centres on a witness’s genuine efforts to tell the truth in a wholesome manner, not leaving out details that could mislead the listener. An honest witness endeavors to tell the truth as they experienced it, acknowledging that some of their perceptions may have been flawed.

[56] One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting certain events at one time while referring to them on other occasion. [Citation omitted]

[57] A dishonest witness is not a reliable witness absent corroboration, but it does not automatically follow that a credible witness gives reliable evidence. To provide honest and reliable evidence, a witness must be truthful and alive to their limitations. They must be open to the possibility of alternative perceptions. A credible witness without such insight may inadvertently give unreliable evidence because they are rash, overconfident, or reckless in their pursuit of an outcome.

[58] Ultimately, a court must consider all the relevant factors that go to the believability of the evidence in the factual context of the case.

Credibility assessment is not all or nothing. As noted in Re Novak Estate,

[37] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. [Citation omitted]”

Najm v. Najm, 2024 ONSC 2053 (CanLII) at 15-16

“I am not deciding whether Ms. Addeo is entitled to spousal support or the quantum and duration of any support to which she may be entitled. I am only deciding the threshold issue of whether Mr. Elkind and Ms. Addeo were spouses. The parties agree that if they were not spouses, Ms. Addeo’s claim for spousal support should be struck. If, however, they were spouses, the merits of Ms. Addeo’s claim for spousal support will be decided another day.

The term “spouse” is defined in various ways in the Family Law Act. For support purposes, spouse includes three categories of people: (a) people who married, (b) people who are not married but who have cohabited continuously for a period of three years, (c) people who “have cohabited, in a relationship of some permanence, if they are the parents of a child”: Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1) and 29. Because Ms. Addeo and Mr. Elkind were never married and lived together for only a year, they can only be spouses for the support purposes if they “cohabited in a relationship of some permanence”, and if “they are the parents of a child.”

Mr. Elkind acknowledges that he and Ms. Addeo lived in a relationship of some permanence. But he argues they are not parents of a child because their daughter died before they separated.

The only issue on this motion is the meaning of the phrase “are the parents of a child” in s. 29 of the Family Law Act (“FLA”). For the reasons that follow, I find that s. 29 of the FLA should be interpreted to mean that two people who have a child together while cohabiting in a relationship of some permanence are spouses. How long the child lived and whether the child is alive on the date of separation may be relevant to a spouse’s entitlement to receive support but are not relevant to whether the parents of the child were spouses and, therefore, entitled to make a claim for support.

I find that Ms. Addeo and Mr. Elkind were spouses. Mr. Elkind’s motion is dismissed and Ms. Addeo’s application for spousal support shall proceed.”

Addeo v. Elkind, 2022 ONSC 2173 (CanLII) at 3-7

“At present there is both a common law and statutory basis for an order of temporary child support. In Michel v. Graydon, 2020 SCC 24, Brown J., writing for the majority, offered a common law basis for child support as follows:

41  Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation …

Until that pronouncement, it was generally understood that the jurisdiction to order temporary child support is solely a statutory one, founded in both federal and provincial jurisdiction.

The federal jurisdiction, which applies in divorce cases such as this, is found in s. 15.1(1),(2) and (4) of the Divorce Act, R.S.C. 1985,s. 3 (2ns Supp.) as amended, which reads as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

…

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

A motion such as this highlights the tensions between the usual purpose of a temporary child support order and the factors which govern the retroactivity of child support obligations.

On the one hand is the principle that interim support is a short-term remedy meant to ensure that a dependant maintains, as best possible, a reasonable lifestyle until trial. In that regard, the court does not embark on an in-depth analysis of the merits of the case: Charbonneau v. Charbonneau 2004 CanLII 47773 (ON SC), [2004] O.J. No. 5059 (S.C.J.), at paras. 15-16, Orsini v. Orsini, 2016 ONSC 3332, at para. 60.

Generally, then, in cases in which retroactive support is sought, the trial judge is best situated to determine the issue based upon a full factual record. Nonetheless, the issue of retroactivity cannot be completely ignored at the interim stage of proceedings. That is because of the need of dependants who may have been deprived of timely support and to avoid incentivizing delay by the payor in meeting their obligations to their dependants.

In Orsini, supra, at para. 61(c), Ricchetti J. wrote that a court adjudicating a motion for a retroactive temporary child support order should “consider the factors in [D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”)] based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion.”

In D.B.S., the Supreme Court of Canada instructed lower courts to consider four factors in determining a request for retroactive support: delay, payor conduct, the child’s circumstances and potential hardship to the payor if an order for retroactive support is made: see the summary of these factors in Colucci v. Colucci 2021 SCC 24, (“Colucci”) at para. 37.

D.B.S. also provides a presumption that retroactive child support will not commence more than three years from the date of effective notice of the claim: D.B.S. at para. 123.  Nonetheless, the court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the circumstances of a particular case: D.B.S. at para. 99, Colucci at para. 96.

As set out above, one key D.B.S. factor is payor conduct. That factor looks, in large measure, to the presence or absence of blameworthy conduct by the payor. The Mother relies on that factor in this motion.

Blameworthy conduct is any conduct that has “the effect of privileging [the payor’s] interests over the child’s right to support”. The payor’s subjective intentions are rarely relevant: D.B.S., at para. 106, Colucci at para. 101. Two potential forms of blameworthy conduct are a refusal to pay support when it is merited and a failure to provide income disclosure. As Bastarache J. wrote at para. 124 of D.B.S.: “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.”

While a motion court may consider blameworthy conduct within the context of a claim to temporary retroactive support, it should be cautious in making such a finding because a trial judge is in the best position to conduct the necessary holistic analysis of the D.B.S. factors: Palaganas v. Marshall, 2016 ONCJ 445 at para. 47.

All of that being said, where there are substantial issues in dispute regarding the entitlement of a party to retroactive support, the analysis should be left to the trial judge: Palaganas, at para. 56, citing K.B.A.S. v. G.E.S. 2006 S.J. No. 604 (Q.B.); A.L.Y. v. L.M.Y., [2001] A.J. No. 506 (Q.B.); and Villeneuve v. Lafferty, [1999] N.W.T.J. No. 128 (S.C.).”

Spencer v. Spencer, 2024 ONSC 1970 (CanLII) at 15-27

“To avoid compelling children to give evidence in family law trials, hearsay evidence of the children is admissible as a principled exception to the hearsay rule if the evidence is necessary and if it is reliable.

Necessity is satisfied if the circumstances are such that it would be inappropriate to call the child as a witness to give evidence.

Reliability will be met if the evidence is not objected to, if the child has repeated the same statement to more than one person, or where the statement has been made to a person who has a demonstrated skill in interviewing children.  If admitted, the weight to be given to the hearsay statement of a child will depend on the age of the child, both mental and physical, the circumstances surrounding the taking of the statement, the risk the child was influenced or manipulated when giving the statement or that the statement itself was edited or manipulated, and the desire of the child to please or appease the parent taking or requesting the statement: Wilson v. Wickham, 2018 ONSC 2574, at paras. 30 and 31. This is not a strict list of considerations for reliability as the factors to be taken into account will vary with each child and with the circumstances affecting or influencing that child: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at para.11.”

            A.M. v. D.M., 2023 ONSC 2113 (CanLII) at 5-7

“Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage — the term “status quo” is not specifically mentioned in the legislation. However, section 24(3)(d) of the CLRA lists “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”.  Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

a.    It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial:  Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Wang v. Tang, 2023 ONSC 3609 (SCJ); Easton v. McAvoy, 2005 CarswellOnt 7379 (OCJ); Levesque v. Bond, 2023 ONSC 1895 (SCJ)

b.    The status quo – and avoiding reckless creation of a new status quo – are important considerations at the interim stage.  Cosentino v. Cosentino, 2016 ONSC 5621 (SCJ); Cabral v. Parker2021 ONSC 4574 (SCJ); Viveash v. Viveash 2021 ONSC 7456 (SCJ); N.D. v. R.K ., 2020 ONCJ 266 (OCJ).   The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change.   W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda 2013 ONSC 7869 (SCJ); Green v. Cairns, 2004 CanLII 9301 (SCJ); Papp v. Papp, 1969 CanLII 219 (ON CA); MacDonald v. Cannell, 2021 ONSC 7769 (SCJ).

c.    Temporary orders are “band-aid” solutions pending a full hearing.  The status quo is ordinarily maintained pending trial unless the evidence demonstrates that the best interests of the child require some modification.  Sullivan v. Senechal, 2022 ONSC 557 (SCJ)

d.    To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger if the status quo is maintained.  The evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests. Miranda v. Miranda, 2013 ONSC 4704 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); A.L. v. C.M.,2023 ONCJ 412 (OCJ); Tomkinson v. Baszak 2023 ONSC 4092 (SCJ).

e.    The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings based on incomplete and untested evidence. R.C. v. L.C., 2021 ONSC 1963 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); Chaput v. Chaput, 2021 ONSC 2809 (SCJ);”

Churchill v. Elliot and Ward, 2024 ONSC 1907 (CanLII) at 36

“On an initial application for child support pursuant to s. 15.1(1) of the Divorce Act, a court may make an order for the payment of child support for “any or all children of the marriage”. For children who are at the age of majority or older, s. 2(1) of the Divorce Act defines them as being a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge: Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263; Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49; Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education: see W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18.”

          Licata v. Shure, 2022 ONCA 270 (CanLII) at 32-33