Author: dawi

“And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 (Ont. S.C.J.) as accurate statements of the law:

[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]”

Balke v. O’Connor, 2017 ONSC 2491 at 14

“Subsection 19(1) [of the Child Support Guidelines] is clearly intended to capture cases that, in fairness, require an adjustment to the payor’s presumptive income and, for this purpose, it provides a court with the discretion to impute income when it is “appropriate [to do so] in the circumstances”.

The list of circumstances in s. 19(1) is not exhaustive: the legislature only provides that the list “include” items (a) – (i).  Further, there is nothing in the provision that suggests other appropriate circumstances must be analogous to those specifically enumerated, although similarity of circumstance to one listed in s. 19(1) would support the imputation of income, simply because such a circumstance would be consistent with legislative intention.  The absence of analogy to a listed circumstance is simply a factor to be considered in interpreting the provision.

Some cases have held that there must be similarity between a new appropriate circumstance and the listed circumstances.  However, Riel v. Holland, [2003] O.J. No. 3901 (C.A.) makes it clear that the listed circumstances are simply examples and it is open to find new circumstances in which to impute income, provided that the new ground is consistent with the purpose of s. 19(1) and the Guidelines generally.  Writing for this court in Riel, MacPherson J.A. concluded at para. 36:

The wording of s. 19 of the Guidelines is open-ended (“which circumstances include”), thus indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can, and should, be imputed.

If appropriate circumstances arise, particularly ones unforeseen by the legislature, a court has the discretion, to be exercised on a principled basis, to impute income to a payor parent.  When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

Bak v. Dobell, 2007 ONCA 304 (CanLII) at 33-36

“In our view, there is no conflict between s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Properly interpreted, harmonious effect can be given to both.

In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. As we will explain in the reasons that will be subsequently provided, no meaningful risk assessment was or could have been undertaken in the circumstances of this case at the time the motion was heard. As a result, the Order cannot stand; this court stands in the shoes of the motion judge.”

Issai v. Rosenzweig, 2011 ONCA 302 (CanLII) at 8-9

“As we explain below, we believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s. 15.2, but also certainty, finality and autonomy. Second, the court would ask whether, viewed from the time the application is made, the applicant has established that the agreement no longer reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the Act.”

Miglin v. Miglin, [2003] 1 SCR 303, 2003 SCC 24 (CanLII) at 4

“Strictly speaking, the term retroactive support” connotes support owing from a date prior to the issuance of a support application, while support owing from the date of the issuance of an application is retrospective rather than retroactive.”

Cameron v. Cameron, 2018 ONSC 2456 (CanLII) at 9

“Where there has been a delay of twenty-four years in pursuing a claim for spousal support, there must also be a consideration of the intervening factors as well as the reasons for the delay in pursuing such a claim (see Howe v. Howe, [2012] O.J. No. 2031).

Time delay does not bar a claim for support provided that there is reason for the delay and events that have transpired since the delay (see Albert v. Albert, 2007 CanLII 29972 (ON SC), [2007] O.J. No. 2964, Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074 (CanLII), [2014] O.J. No. 5828 and Norbega v. Norbega, [2007] O.J. No. 1134).

There is no requirement to demonstrate a material change in circumstances where there is an initial application for spousal support under s. 15(2) of the Divorce Act after a prior release of spousal support.  The prior release is simply a factor to be considered (see Miglin, supra).

…

There is no limitation period for a spouse to make a claim for spousal support; however, the courts still retain a residual discretion to dismiss an application for spousal support due to delay (see Walker v. Greer, 2003 CanLII 64331 (ON SC), [2003] O.J. no 3396).

In deciding whether to dismiss a spousal support application for delay the court will consider whether the explanation for the delay was reasonable and any blameful conduct by the payor spouse causing the delay such as failure to disclosure increased income and any prejudice to the payor spouse caused by the delay including lack of notice and any obligation the payor has assumed in the meantime (see Hillhouse v. Hillhouse, 1992 CanLII 5983 (BC CA), [1992] 43 RFL 3d 266 (BCCA), A.M. v. R.P.K., 2010 ONSC 930 (CanLII), [2010] O.J. No. 807 and Philp v. Philp, [1997] O.J. No. 3415 Ontario General Division).”

A.P. v. F.D., 2016 ONSC 2566 (CanLII) at 62-64 & 67-68

““Custody” is not defined in Ontario legislation, though its meaning in family law is generally understood.  It consists of a bundle of rights and obligations, called “incidents” in sections 20 and 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.  Family law cases often deal with the allocation of rights of custody.  Those rights include the right to physical care and control of the child, to control the child’s place of residence, to discipline the child, to make decisions about the child’s education, to raise the child in a particular religion or no religion, to make decisions about medical care and treatment.  The incidents of custody can be dealt with all together or separately, according to section 21, and today it is common for parents who have separated to agree, and for courts to order, that some incidents of custody are jointly vested in the parents and some belong to one parent exclusively.  If a custodial right is joint, it may be exercised by any one of the persons who has it…

…

Historically the Crown, exercising the authority of parens patriae through the Court of Chancery in England and Upper Canada and later the consolidated superior court of Ontario, had the sole authority to transfer custodial rights in respect of a child.  Gradually over the last 200 years, statutes were passed dealing with court orders for custody, guardianship and wardship of children, but it was only in 1978 that legislative recognition of private contractual arrangements for custody first occurred in Ontario, in the Family Law Reform Act, 1978, S.O. 1978, c. 2.

The agreement entered into in this case is ineffective under the law to confer joint custodial rights over Valerie on the applicant.  The only instruments (other than court orders) recognized by Ontario law as conferring custodial rights over a child are marriage contracts, cohabitation agreements and separation agreements (see section 20 (7) above and Family Law Act, R.S.O. 1990, c. F.3, as amended, sections 52–54), wills (see Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, section 61) and temporary care and special needs agreements with a children’s aid society (see Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, Part II).”

Chou v. Region District School Board, 2005 CanLII 11195 (ON SC) at 21-23

“To award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests.”

Zafar v. Saiyid, 2018 ONCA 352 (CanLII) at 14

“The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, is the same as the test for an interlocutory injunction established by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to consider the following three factors:

(1)    a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2)    it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3)    an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

These three factors are not watertight compartments: the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); see also Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 (Weiler J.A., in chambers), at paras. 14-15; BTR Global, at para. 16.”

H.E. v. M.M., 2015 ONCA 244 (CanLII) at 2-3

“As explained by this court in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), lawyers who represent themselves in a lawsuit are entitled to costs. Self-represented litigants, however,

be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. … Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.”

Pirani v. Esmali, 2014 ONCA 279 (CanLII) at 6