“In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49.”
Author: dawi
October 21 – Exposing Child to Different Religions & Faiths
“In summary, as a matter of statutory interpretation, the Divorce Act mandates that, in decisions of custody and access, the sole consideration be the best interests of the child. The focus must remain at all times on the child, not the needs or interests of the parents, and parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child.
The custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well‑being of the child. Parental authority rests with the custodial parent, not for his or her own benefit, but in order to enable that parent to discharge effectively the obligations and responsibilities owed to the child.
As set out in the Act, maximum contact between the child and the non‑custodial parent is a worthwhile goal which should be pursued to the extent that it is in the best interests of the child. Generous and unrestricted access, which is the norm, should be favoured except when such access would not be in the best interests of the child. However, ongoing conflict between parents which adversely affects the child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce.
The best interests of the child must be approached from a child‑centred perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.
Where the question of restrictions on access arises, the best interests of the child must be determined by considering the “condition, means, needs and other circumstances of the child” as required by the Act. The totality of these circumstances must be considered. Nothing in the Act suggests that harm should be the controlling factor. To adopt the harm standard would be to invert the focus of the best interests test and place the risk of error on the child, contrary to the objectives of the Act.
Expert evidence, while helpful in some cases, is not routinely required to establish the best interests of the child. That determination is normally possible from the evidence of the parties themselves and, in some cases, the testimony of the children involved.
Freedom of religion and expression are fundamental values protected by the Charter. However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter. The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access. While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”
Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé.
October 19 – Valuing Contingent Liabilities (Guarantees)
“By operation of s. 5 of the Family Law Act, the parties to the marriage share equally in any increase in the value of family property between marriage and the date of separation. Section 5 provides as follows:
5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.
In the jurisprudence that has developed under this section, the difficulty in valuing assets and liabilities, particularly contingent liabilities, is often noted. What is clear, however, is that contingent liabilities are to be taken into account as long as they are reasonably foreseeable. See Leslie v. Leslie (1987), 9 R.F.L. (3d) 82 (Ont. H.C.); Nicol v. Nicol (1989), 21 R.F.L. (3d) 236 (Ont. H.C.); Crutchfield v. Crutchfield(1987), 10 R.F.L. (3d) 247 (Ont. H.C.); and Drysdale v. Drysdale(1994), 1994 CanLII 7453 (ON SC), 9 R.F.L. (4th) 20 (Ont. U.F.C.J.).
In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date: Johnston v. Johnston, [1998] O.J. No. 5495 (Gen. Div.), at para. 59, aff’d on other grounds 2000 CanLII 14718 (ON CA), 2000 CanLII 14718 (ON C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 234. In Drysdale, at paras. 14-17, Beckett J. noted that where courts have found no or a very low risk that a guarantee would be called at the valuation date, the value of the contingent liability has been determined to be nil. However, in Drysdaleit was found that there was a real possibility that the guarantee would be called upon, though the amount could not be predicted with any certainty. Finding it unrealistic to value the liability at either zero or the full amount of $200,000, Beckett J. valued the liability at 50 percent of the amount in question: see also Salamon v. Salamon, [1997] O.J. No. 852 (S.C.J.). This approach was approved by this Court in Cade v. Rotstein(2002), 2004 CanLII 24269 (ON CA), 181 O.A.C. 226 (C.A.).”
October 18 – Bad Faith
“In Scalia v. Scalia, 2015 ONCA 492 (CanLII) the Ontario Court of Appeal confirmed that the legal test for bad faith in the family law context as set out by Perkins J.in S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.).
a. In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.
b. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith.
c. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent.
d. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
e. In short, the essential components are intention to inflict harm or deceive.”
October 17 – Retroactive Spousal Support
“Retroactive spousal support can be ordered prior to the date first claimed in legal proceedings where there is good reason for the delay: see Philip v. Philip, 2006 CarswellOnt 1591, [2006] W.D.F.L. 2242 (S.C.J.), at para. 50.”
October 15 – Role of Child Protection Workers
“The only time that the worker commented on the mother’s parenting ability was in his reply affidavit and the way he did this was unacceptable to this court. In response to the mother’s evidence that she parented positively, he attached three access observation notes to his affidavit where there were problems on visits. Aside from the fact that the society should be providing direct affidavits from its workers about access observations at summary judgment motions (and as a result I attached little weight to this evidence), this was extremely unfair of the worker. The society conceded in argument that access visits were going well, yet the worker “cherry-picked” three negative reports to buttress the society’s case. Why did he not attach reports that showed the mother in a positive light? I repeat the comments that I made in paragraphs [55]-[56] of Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (Ont. C.J., 4 May 2007), where I said:
| [55] This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society’s role in presenting a case to the court is not merely to present evidence that justifies its position, but to present allrelevant and probative evidence, including that not favourable to its position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position. It is not good enough to say that it is the job of the parents’ lawyers to produce this evidence. Parents’ counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information. Child protection trials are not, and should not, be a game. | ||
| [56] From a practical perspective, this made the evidence of the society workers less reliable. How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner? This did not mean that I rejected their evidence, but it did mean that I treated it with more caution. |
These comments are applicable to every stage of a proceeding and I would think are even more pertinent when we are hearing a summary judgment motion and the worker is not subject to cross-examination.”
Catholic Children’s Aid Society of Toronto v. M.(A.), 2007 ONCJ 743 (CanLII) at 58
October 12 – Standard of Review on Appeal for Support Orders
“The Supreme Court of Canada addressed the standard of review for appeals of support orders in Hickey v. Hickey,1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. As stated in that decision, at para. 11, appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”
October 11 – FLA and the Indian Act
“On the authority of the Supreme Court of Canada’s decision in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285 and its progeny, neither this court nor the application judge in this case have authority to make any order concerning possession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. c. I-5.
Accordingly, to the extent that paragraph 7 of the application judge’s order dated October 14, 2011 is intended to address ownership or possession of the former matrimonial home, this part of his order cannot stand.”
October 7 – Supervised Access
“Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. See Najjardizaji v. Mehrjerdi, 2004 ONCJ 374(CanLII), 136 A.C.W.S. (3d) 493, [2004] O.J. No. 5472, 2004 CarswellOnt 5656 (Ont. C.J.).
The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See Margaret A. v. John D., 2003 CanLII 52807 (ON CJ), 2003 CanLII 52807, 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 CarswellOnt 2793 (Ont. C.J.).”
October 5 – Pre-Tax Corporate Income
“The controversy in the case law surrounds whether, in the case of a payor who is a shareholder, director or officer of a corporation and where the court is of the opinion that the payor’s line 150 income does not fairly reflect all the money available to the payor for the payment of support, the court is restricted to including in a payor’s annual income pre-tax corporate income from onlythe most recent taxation year. Relying on Bear v. Thompson, a decision of the Saskatchewan Court of Appeal, the husband supports this position. I would adopt a different approach.
In Bear v. Thompson, the Saskatchewan Court of Appeal conducted an extensive review of the case law relating to the proper interpretation of ss. 17 and 18 of the Guidelines and also considered the interpretation of those provisions having regard to the modern rule of statutory interpretation.
The court concluded that s. 17 is a stand-alone provision directed at allowing the court to consider the payor’s line 150 income over the last three years and to determine an amount that is fair and reasonable in light of any pattern of, or fluctuation in such income during that period or receipt of a non-recurring amount. The court found that s. 17 does not permit including pre-tax corporate income as a source of funds in making this assessment. Further, while s. 18 permits considering corporate income over the last three years to determine the amount of any pre-tax corporate income that should be added to a payor’s line 150 income, it does not permit adding to line 150 income amounts of pre-tax corporate income that exceed the corporation’s income for the most recent taxation year.
I agree that the modern rule of statutory interpretation should be used to interpret the Guidelines. Nonetheless, I would not adopt this restrictive interpretation of ss. 17 and 18. In my view, a review of the Guidelines as a whole compels a different conclusion.
In particular, as I read the Guidelines, s. 17 does not restrict a court to considering line 150 income over the last three years; rather a court may also consider amounts of pre-tax corporate income included in a spouse’s income under s. 18 for each of the last three years.
The purpose of ss. 15 to 20 is to arrive at a number that fairly and fully reflects the payor’s income. The default is that this number will simply be determined using line 150 income. Where, however, the court determines that this default determination would be unfair, the Guidelines permit an expanded view of income.
In my view, the scheme of these provisions is that s. 18 permits a court to take an annual snapshot of a spouse’s income – and include in it pre-tax corporate income from the most recent taxation year. If the corporation suffered a loss in the most recent taxation year, no amount of pre-tax corporate income may be included. Under s. 17 however, the court may determine an amount that is fair and reasonable having regard to the spouse’s income over the last three years in light of, among other things, any pattern of, or fluctuations in, income over the three-year period. And “income” for that purpose may include amounts of pre-tax corporate income added to line 150 income under s. 18 for each of those years.
As I see it, it would make little sense to permit consideration of a spouse’s income over the three-year period without permitting consideration of the spouse’s access to pre-tax corporate income in each year of the three-year period. This is particularly the case where, as here, the payor spouse now wholly owns the corporation (which was formerly owned by him and the wife). Otherwise, the exercise of considering a pattern of, or fluctuations in, income would be artificial.
Further, this interpretation, is consistent with the language of s. 17:
- (1) If the court is of the opinion that the determination of a … spouse’s annual income under section 16 would not be the fairest determination of that income, the court mayhave regard to the … spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Emphasis added.]
Had it been the legislature’s intention to restrict the three-year review of the spouse’s income to line 150 income, the legislature could easily have said the court may have regard to the spouse’s annual income over the last three years as determined under s. 16. But instead of using that or similar language, s. 17 refers to the “spouse’s income over the last three years.” “Income” in this context is not restricted to the spouse’s annual income as determined under s. 16; it can fairly be read as meaning the payor’s annual income as defined under s. 15 – meaning the payor’s income as determined in accordance with ss. 16 to 20.
In addition, interpreting the sections in this way avoids any incentive to manipulate corporate income leading up to a trial or the inevitability of a variation in the event of an unusual year.
This approach is also consistent with the fundamental object of the Guidelines, which is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support.”