“Pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2ndSupp.), the court cannot vary a custody order on the application of the parties in the absence of “a change in the condition, means, needs or other circumstances of the child” since the making of the order. There must be a material change in the circumstances of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed circumstances, the court’s inquiry can proceed no further: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239.”
Author: dawi
July 26 – Unjust Enrichment
“It must be stated that, in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act; the spouse who legally owns an asset will ordinarily share half its value with the other spouse as a result of the equalization provisions under the Act. However, a fair and contextual reading of the equalization and net family property provisions of the Family Law Act ensures that married spouses are not deprived of equitable remedies they would otherwise have available to them because, as noted above, ownership issues — equitable or otherwise — are to be determined before the net equalization payment exercise is undertaken.”
July 25 – Equalization & Prejudgment Interest
“The principles for awarding prejudgment interest on equalization payments are not necessarily identical to those used in commercial cases: McQuay v. McQuay(1992), 8 O.R. (3d) 111(Div. Ct.). The weight of jurisprudence in family law cases at the trial level indicates that exceptions do exist to the usual award of interest on an equalization payment. Specifically, the court’s discretion will be exercised under s. 130 of the Courts of Justice Act, supra, and prejudgment interest will not be awarded on an equalization payment where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial. See Rotchill v. Rotchill, [1992] W.D.F.L. 1552; Balloch v. Balloch(1991), 35 R.F.L. (3d) 189; Karakatsanis v. Georgiou(1991), 33 R.F.L. (3d) 263; De Acetis v. De Acetis(1991), 33 R.F.L. (3d) 372; Gregoric v. Gregoric(1991), 4 O.R. (3d) 604; Jukosky v. Jukosky(1990), 31 R.F.L. (3d) 117, all decisions of the Ontario Court (Gen. Div.); and Rickett v. Rickett(1990), 71 D.L.R. (4th) 734(Ont. H.C.) ; Genna v. Genna(February 14, 1990), (Ont. S.C.) (unreported); Woeller v. Woeller(1988), 15 R.F.L. (3d) 120(Ont. Dist. Ct.) ; Humphreys v. Humphreys(1987), 7 R.F.L. (3d) 113(Ont. H.C.) ; and Harry v. Harry(1987), 9 R.F.L. (3d) 121(Ont. Dist. Ct.) . Most of these cases involve the matrimonial home, but some also involve a pension. The approach indicated in cases such as Humphreys, supra, and Gregoric, supra, was specifically approved in McQuay v. McQuay, supra.”
July 23 – Scope of Appellate Review
“The Supreme Court of Canada has confirmed the narrow scope of appellate review in all family law matters relating to custody and access: see Van de Perre v. Edwards,2001 SCC 60(CanLII),[2001] 2 S.C.R. 1014, at para. 11. An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law: Van de Perre, at paras. 11-12.”
July 22 – Basis For Joint Custody
“The appellant’s principal submission that joint custody was inappropriate focused on a portion of the trial judge’s reasons where he said that there was “a realistic hope that these parties will be able to work together for the benefit of their children and without the difficulties of rules and demands”. The appellant relies upon decisions from this court such as Kaplanis v. Kaplanis(2005), 2005 CanLII 1625 (ON CA),10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a “hope” that communication between the parties will improve. These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.”
July 21 – Child Protection & Meaning of the Word “Charge”
“Clause 51(2)(a) of the Child and Family Services Act, R.S.O. 1990, c. c-11, as amended (“the Act”), provides (my emphasis):
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(2) Custody during adjournment.— Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, | ||
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remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; |
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I begin by noting that the question of who had “charge” of the child is not determined by which person had actual physical or de factocustody of the child at the time of apprehension. In Children’s Aid Society of Algoma v. Teena G. et al.,2002 CanLII 52569 (ON CJ), 2002 CanLII 52569, 125 A.C.W.S. (3d) 1020, [2002] O.J. No. 5483, 2002 CarswellOnt 5476 (Ont. C.J.), Justice John Kukurin considered the meaning of “charge of the child”, and stated at paragraph [15] (my emphasis):
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[15] . . . “Charge” has connotation of authority and responsibility. “Charge” of a child suggests some established relationship, not something transient or temporary. |
See also Children’s Aid Society of Ottawa v. H.C. and C.C. (No. 2)(2003), 2003 CanLII 38754 (ON SC), 2003 CanLII 38754, 127 A.C.W.S. (3d) 1159, 17 O.F.L.R. 152, [2003] O.J. No. 5309, 2003 CarswellOnt 5286 (Ont. Fam. Ct.), wherein Justice Jennifer A. Blishen decided that a one-week visit with the mother, where the child had previously lived with the father for two months, was not sufficient to give the mother sole “charge” of the child at the time of the society’s intervention.”
Children’s Aid Society of Toronto v. A.(S.),2008 ONCJ 348 (CanLII) at 7 & 12
July 18 – Child Support When Child Away At School During Academic Year
“Since Jade is living away from home eight months each year, I find the table amount of child support to be inappropriate for her during the time she lives away from home (subsection 3(2) of the child support guidelines). The father should not have to both contribute towards Jade’s post-secondary school costs and pay the full table amount of child support, while she is away at school. In Merritt v. Merritt(1999), 88 A.C.W.S. (3d) 424, 98 O.T.C. 321, [1999] O.J. No. 1732, 1999 CarswellOnt 1471 (Ont. Fam. Ct.), the court said at paragraph [73]:
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[73] Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks, where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute. |
I will order the table amount of child support while Jade is at home during the summer. During the other eight months, I will apportion her expenses between the parents, taking into consideration her contribution to these expenses. This is a common approach taken by the courts. See Park v. Thompson(2005), 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, 2005 CanLII 14132 (ON CA), 2005 CanLII 14132, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.); Gagnier v. Gagnier, [2002] O.J. No. 2183, 2002 CarswellOnt 5056 (Ont. Fam. Ct.); Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CanLII 29972, 40 R.F.L. (6th) 203, [2007] O.J. No. 2964, 2007 CarswellOnt 4863 (Ont. S.C.).”
July 17 – Recording of Spouse’s Calls
“Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko(1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 CanLII 14087 (ON SC), 1998 CanLII 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):
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[5] . . . There is a wide scope for potential abuse in this practice. |
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[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court. |
The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.”
July 14 – Equalization & Bankruptcy
“As a consequence, the interpretation of the [Bankruptcy Insolvency Act]requires the acceptance of the principle that every claim is swept into the bankruptcy and that the bankrupt is released from all of them upon being discharged unless the law sets out a clear exclusion or exemption. As I will explain below in greater detail, the appellant’s equalization claim was provable in the respondent’s bankruptcy. In light of the provisions of the BIA, it is therefore difficult, subject to one minor reservation concerning the terminology used, to find fault with the Court of Appeal’s holding that the equalization claim had been “extinguished” by the respondent’s discharge. That holding appears to be faithful both to the words of the FPAand to the provisions of the BIA. In this respect, given that Ontario is also an equalization province, it is worth mentioning that the Ontario Court of Appeal recently espoused this reasoning in Thibodeau v. Thibodeau, 2011 ONCA 110 (CanLII), 104 O.R. (3d) 161. I agree with the following comments by Blair J.A.:
Separating spouses are not entitled to receive a division of property. Rather, they are entitled (generally speaking) to receive one-half of the valueof the property accumulated during the marriage. An equalization paymentis the chosen legislative default position. On the bankruptcy side, unsecured creditors are to be treated equally and the bankrupt’s assets to be distributed amongst them equally subject to the scheme provided in s. 136of the BIA. Parliament has not accorded any preferred or secured position to a claim for an equalization payment. While it has recently chosen to amend the BIAto give certain debts or liabilities arising in relation to claims for support and/or alimony a preferred status, Parliament has made no such provision for equalization claims in relation to family property.[Underlining added; para. 37.]”
July 13 – Retroactive Child Support & Blameworthy Conduct
“First, I do not read D.B.S.as establishing any such “deemed blameworthiness at law” principle. The Supreme Court of Canada made clear that blameworthy conduct on the part of a payor spouse is an important factor in the retroactive support analysis, that what is “blameworthy” conduct is to be considered in an expansive fashion, and that a payor parent who knowingly diminishes his or her child support (including a failure to make reasonable upward adjustments in support where warranted) should not be allowed to profit from such conduct: paras. 105-107. However, a failure to increase support automatically does not necessarily amount to blameworthy conduct, which requires some form of conscious choice to ignore parental support obligations: paras. 107-108.
Whether conduct is “blameworthy” is a question of fact or at least of mixed fact and law. It is a subjective question, informed by certain objective indicators: D.B.S., at para. 108. Here, the trial judge made no finding that the respondent had engaged in any blameworthy conduct. Indeed, he found that the respondent had “acted reasonably in his efforts to support his children” and had “made no attempt to defeat [his] obligations to look after the family”. These findings are not consistent with blameworthy conduct and are entitled to deference. Even accepting that the respondent failed to fulfill his obligations by not being more alert to increasing his support payment commensurate with his increasing income, there were other factors in play which the trial judge took into account, as outlined above. In addition, the residential situation respecting the children was somewhat fluid during these periods.”