Author: dawi

“Numerous cases since the advent of the COVID-19 pandemic have recognized that parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives. The jurisprudence that has developed since the beginning of the COVID-19 pandemic may be summarized as follows:

i.     There is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child.

ii.     While there is a presumption that existing parenting arrangements and schedules should continue, both custodial and access parents and members of their households are obliged to strictly adhere to COVID-19 safety protocols, including social distancing, hand washing, use of face masks and compliance with all public safety measures. They must also ensure that their children comply with these protocols while in their care.

iii.     A parent concerned about the other parent’s adherence to COVID-19 safety protocols cannot unilaterally deny the other parent’s court ordered access or parenting time, but must bring a motion to seek a variation. The parent initiating such a motion is required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

iv.     The parent responding to such a motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

v.     Both parents will be required to provide very specific and realistic proposals which fully address all COVID-19 considerations, in a child-focused manner.

vi.     A parent cannot unilaterally impose on the other parent conditions in addition to the safety precautions required by government and public health officials. If one parent is of the view that additional precautions are required, and the other parent does not agree to follow them, the parent seeking to impose additional requirements must bring a motion to request the court to add such conditions to the parenting schedule. Any such motion must be accompanied by medical evidence to support the request.

See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; Almadi v. Kalashi, 2020 ONSC 2047, at paras. 7-8; Skinner v. Skinner, 2020 ONSC 3226, at para. 35.

Finally, the courts have recognized that some circumstances may exist where parenting arrangements and schedules will have to be altered as a result of one parent’s refusal or inability to comply with government mandated COVID-19 safety protocols. In Ribeiro, Pazaratz J. stated, at paras. 13-14:

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.”

         J.F. v. L.K., 2020 ONSC 5766 (CanLII) at 20-22

“Both parties in this motion agree that the court is generally very cautious in granting an interim order seeking a change in mobility or relocation given the summary nature of interim motions. The reported Ontario case of Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), makes the following statement at paragraph 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1)  A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2)  There can be compelling circumstances that might dictate that a judge ought to allow the move.  For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3)  Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.”

         Tower v. Lebrun, 2020 ONSC 5723 (CanLII) at 16

“Where parties are married and on separation one spouse claims an equalization of net family property, the court has jurisdiction under s. 12 of the Family Law Act to make an order for the preservation of the spouses’ property pending a determination of the claim.  The jurisdiction includes an order “for the possession, delivering up, safekeeping, and preservation of the property”:  see s. 12(b).  What is the jurisdiction where the parties were not married?

In Dimartino v. Dimartino, 2016 ONSC 7461, the parties were married for 45 years and had two adult children.  The husband was in the business of buying and selling properties.  The wife claimed that the husband had transferred a property to his son, who was also in the building business, for nominal consideration.  The wife claimed that the transfer was fraudulent.  She brought a motion for a preservation/non-dissipation order against the son.

Charney J. confirmed that the Family Law Act, s. 12(b), does not permit the court to make an order against a third party to the proceeding.  The express language of s. 12 of the Family Law Act is directed to property owned by a spouse and not property owned by a third party.  The wife had to rely on the equitable jurisdiction of the court to grant a Mareva injunction.  In para. 32, Charney J. articulated the test relating to Mareva injunctions by reference to a 2014 decision of Perell J. as follows:

In O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 (Ont. S.C.J.) (CanLII), at para. 67, Perell J. summarized the law relating to Mareva injunctions as follows:

For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment.  A Mareva injunction should be issued only if it is shown that the defendant’s purpose is to remove his or her assets from the jurisdiction to avoid judgment.  The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction.  Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.

Although the facts in Dimartino are different than the facts before me, the analysis is the same.  The Family Law Act, Part One, applies only to spouses who were married.  As the applicant cannot request a preservation order under s. 12 of the Family Law Act, he is limited to requesting relief in the form of a Mareva injunction.

The test for a Mareva injunction presents a higher hurdle than the test for a non-dissipation order: see Price v. Price, 2016 ONSC 728, and there is good reason for that. A Mareva injunction is akin to execution before judgment.  A Mareva injunction is exceptional relief and can only be granted in extraordinary circumstances.  When ordered, such extraordinary relief ties up the assets of the respondent before there has even been a determination on the merits of the case and before any judgment adverse to the respondent has been rendered.  A request for such extraordinary relief imposes a considerable burden on the moving party.”

         Crouchman v. Garant, 2020 ONSC 5693 (CanLII) at 13-17

“This court proceeding was commenced by the Society on February 1, 2018 under the Child and Family Services Act, R.S.O. 1990, c. c.11 (“CFSA”).  On April 30, 2018, the CFSA was replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). A transitional regulation, O.Reg. 157/18, required that all cases not concluded at the date the CYFSA came into force would be continued as a proceeding commenced under the CYFSA rather than the CFSA. (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.)

Accordingly, the issue of access must be determined pursuant to the CYFSA.  This is significant as the CYFSA provides for a new expanded test for access to children in extended society care.  Justice Benotto of the Ontario Court of Appeal in the Kawartha case stated in paragraph 31:

Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community.”

Highland Shores Children’s Aid Society v. J.G. and R.D.F., 2019 ONSC 5476 (CanLII) at 120-121

“The law on this subject has evolved rapidly, but now is relatively clear.

The law is, and always has been, that the best interests of the child govern the issue of where the child goes to school.

The Covid-19 pandemic does not change the focus of the analysis. Rather, it adds certain other factors to consider as set out in Himel J.’s decision in Chase v Chase, 2020 ONSC 5083, Akbarali J.’s decision in Zinati v. Spence, 2020 ONSC 5231, and my decision of Amin v. Kabir, 2020 ONSC 5245, (to all three of which I directed Counsel during or Zoom Videoconference of 4 September).

The Court should exercise caution in cases such as this where there has been no determination as to custody and access, and the issue of custody is hotly contested. However, the child’s interest requires that the Court take on this issue squarely.

Most of the “where does the child go to school” motions, such as this case, are really requests by the parties to break the deadlock between parents who share decision making for their children but cannot come to a decision.

In Zinati v. Spence, Akbarali J., said that:

1. Courtsmust pay deference to government plans for a safe return to school. It has access to experts in the Ministry of Health and Departments of Public Health, to advise it on the changing pandemic landscape. The court is not in a position, without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that the government will modify its plans as circumstances require, or as new information becomes known.”

2. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemiceither.

3. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limitedto:

a.  The education plan that the parent putsforward;

b.  The risk of exposure to COVID-19that the child will face if she or he is in school, or is not in school;

c.  Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other riskfactors;

d.  The risk the child faces to their mental health, social development, academic development or psychological well-being from learningonline;

e.  Any proposed or planned measures to alleviate any of the risks notedabove;

f.  The child’s wishes, if they can be reasonably ascertained;and

g.  The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or otherdemands.

  In Amin v. Kabir, after incorporating the factors in Chase and Zinati, I said that:

1. Courts should consider further factors including the child’s connections to school, socially or athletically, and whether it is in the child’s best interests to be removed from them? Are there alternatives outside ofschool?
2. Everychild in Ontario has the right to receive educational services, but also has the obligation to attend a school for the year as defined by the Ministry of Education. Parents must take steps to ensure that their child fulfills his obligation to attend school. It is only in exceptional circumstances that a child will be exempt from this obligation.
3. TheCovid-19 pandemic is an extraordinary situation calling for exceptional measures. But these are only temporary measures which do not modify the provisions of the Education Act. Even though the return to school might not be mandatory, this does not necessarily take away the right of children to receive educational services nor mandate them in one form or another.
4.    In order to justify removing children from school, parents must establish thatthey have and can take the means necessary to achieve the standards set out in the Education Act other than in-class attendance. If one of the parents in a shared custody situation cannot establish that he or she can offer his child the proposed alternative to attendance at school for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.
5.    The Covid-19 pandemic landscape during the pandemic is made of sand, not stone, and is ever-shifting. The current situation may not be much different next September.

In Amin, I was referring to the mandatory attendance at school. The Education Act provides that school is mandatory for children only over 6. My comments in Amin, however, apply equally to children under 6 years of age, subject to the fact that school for them is not mandatory.”

         Sirhindi v. Qayyum, 2020 ONSC 5590 (CanLII) at 18-25

“While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v. Plester (1998), 1998 CanLII 6657 (BC SC), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case.  I note, however, my agreement with MacKenzie J. in Plester, supra, as well as Cameron J.A. in Dergousoff, supra, that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness.  Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards.

The task of determining whether Guideline figures are inappropriate under s. 4 must be undertaken by courts armed with all of the necessary information.  Given that, as I explained above, children’s needs are one of the factors to be considered in assessing appropriateness under s. 4, child expense budgets which provide some evidence, albeit imperfect, of the children’s needs will often be required in contested cases where the paying parent earns more than $150,000 per annum.  This is consistent with s. 21(4) of the Guidelines, which requires custodial parents to provide certain financial information within a specified time after learning that the paying parent’s annual income exceeds $150,000.  As with the mandatory s. 21(4) financial disclosure, the special circumstances of high income parents may also dictate that custodial parents provide child expense budgets.  However, unlike the forms of financial disclosure expressly required under s. 21(4), Parliament did not choose to create a blanket rule requiring custodial parents to produce child expense budgets in all cases where s. 4 of the Guidelines is invoked.  I would therefore leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required.  Indeed, in cases where the paying parent’s income does not greatly exceed the $150,000 threshold, the trial judge may conclude that the added cost and delay of requiring a budget cannot be justified.”

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 44-45

“Pursuant to section 12 of the Family Law Act, R.S.O. 1990, c.F.3, (or “the FLA”), if the court considers it necessary for the protection of the other spouse’s interests under Part I of that Act, dealing with family property, the court may make an interim or final order:

a.  restraining the depletion of a spouse’s property; and

b.  for the possession, delivering up, safekeeping and preservation of the property.

Pursuant to section 40 of the FLA, a court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under Part III of the Act, dealing with support obligations.

In addition to the evidence filed by the parties, counsel referred me to numerous authorities wherein our courts have addressed the manner in which sections 12 and 40 of the FLA should be applied.  While I have read those cases, I think it unnecessary to review them in detail here.  For present purposes, I note that general principles suggested by those authorities include the following:

a.  The object of sections 12 and 40 of the FLA is the protection of a spouse’s interests under the FLA by helping to ensure that there will be assets available to satisfy the entitlements of a spouse who is successful in obtaining relief under the Act.  Relevant to that exercise is an assessment of the risk that assets in existence prior to trial will be dissipated: See, for example:  Bronfman v. Bronfman, 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (S.C.J.), at paragraph 29, and Bandyopadhyay v. Chakraborty, 2019 ONSC 802, at paragraph 44.

b.  Drawing analogies to principles applied when considering to grant interim or interlocutory injunctions, but without intending to lay down explicit and/or rigid formula or guidelines for the granting of such discretionary relief, courts applying sections 12 and 40 of the FLA frequently have regard to the following factors:

i.    the relative strength of a claimant’s case;

ii.    the balance of convenience or inconvenience; and

iii.     the potential for irreparable harm: See Bronfman v. Bronfman, supra, at paragraphs 26-28, Both v. Both, 2008 CanLII 15219 (ON.SC), at paragraph 16; and Bandyopadhyay v. Chakraborty, 2019 ONSC 802, at paragraph 43.

c.  The court accordingly will consider how likely it is that the claimant will be entitled to an equalization payment and/or support, as well as the effect the granting or not granting of such orders will have on the parties: See Bronfman v. Bronfman, supra, at paragraph 29, and Bandyopadhyay v. Chakraborty, supra, at paragraph 44.

d.  Preservation and restraining orders generally should be restricted to specific assets, (as opposed to an all-encompassing order binding all of a party’s property in a general manner), and a claimant seeking such an order should show, on a prima faciebasis, that he or she is likely to receive an equalization payment or support equal to the value of the specific assets: See Lasch v. Lasch, 1988 CanLII 4581 (ON SC), [1988] O.J. No. 488 (H.C.J.), at paragraphs 16-17, cited in Barber v. McGee, [2016] O.J. No. 7140 (C.A.), at paragraph 11; and Bandyopadhyay v. Chakraborty, supra, at paragraph 42.

e.  Restraining orders granted pursuant to section 40 of the FLA usually are made when there is evidence that the party obliged to pay support is not complying with a support order or there is other evidence of blameworthy conduct.  The recipient spouse cannot rely on bare allegations or assumed beliefs; i.e., there must be something more than an “unsupported concern: See Keyes v. Keyes, [2015] O.J. No. 1303 (S.C.J.), at paragraph 76.”

Wright-Minnie v. Minnie, 2020 ONSC 5573 (CanLII) at 6-8

“The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren.  Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship.  She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.

The ratio of this decision has been summed up in several cases (See Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.)) as an inquiry as to the following questions:

a.  Is there a positive relationship between the Applicant and the child?

b.  If there is a positive relationship, has the parents’ decision imperiled that relationship?

c.  Has the parent acted arbitrarily?

It is to be noted that the doctrine of parental deference may not be as compelling where the family of a deceased parent seeks access to a child:  See Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.) and Torabi v. Patterson, 2016 ONCJ 210.”

         Taylor v. Boon, 2020 ONSC 5521 (CanLII) at 12-14

“I decline to deal with retroactive spousal and child support. This is a one-hour motion. There are significant issues regarding the delay by Blanca in advancing the spousal and child support claim, and evidence and argument on the relevant factors as set out in D.B.S. v. S.R.G., 2006 SCC 37 will be required.  As well, since Christian has been paying for Blanca’s housing expenses for 6.5 years, he seeks to categorize these expenses as spousal support payments: this will require evidence as well. The income of each of the parties from 2013 to today will need to be proved, including any imputed income claims. All the retroactive issues are complex and must be dealt with at trial. Counsel should have considered the complexity of the issues on the 6.5-year retroactive claim and should not have sought to argue those issues on a one-hour interim motion. It is the responsibility of the party to adequately estimate the time required to argue a motion in accordance with the primary objective of the Family Law Rules, which focuses on reaching a just resolution through fair, efficient and proportionate use of court time and the resources of the parties.”

Montoya v. Arroyo, 2019 ONSC 5335 (CanLII) at 7

“The mother argues that she does not seek a set-off against the amount of spousal support that the trial judge determined is appropriate. Rather, she argues that, in determining both entitlement and what amount of spousal support is appropriate, the trial judge should have considered that she assumed and paid the joint debt that, under the Agreement, the father had agreed to assume. She argues that the trial judge did not have the benefit of Karlovic v. Karlovic, 2018 ONSC 4233, 12 R.F.L. (8^th) 325, which was decided after the trial judge released his decision. The mother says that Karlovic makes clear that the trial judge could, and should, have considered that she had assumed the debt in determining the quantum of support to which the father is entitled.

The parties’ assets and debts can be relevant to determining both the entitlement to, and to a certain extent the quantum of, spousal support. This is because, while the parties’ incomes are the relevant inputs in calculations under the SSAGs, the trial judge retains discretion in determining whether to award support at the low, mid, or high range of amounts suggested by the SSAGs, or in exceptional cases, even to justify departure from the ranges: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 110.”

         Faiello v. Faiello, 2019 ONCA 710 (CanLII0 at 77-78