Author: dawi

“What part do the SSAG play in spousal support variation proceedings?  Initially, when the SSAG were introduced, it was thought that they did not apply to spousal support variation proceedings:  see Fisher v. Fisher, 2008 ONCA 11 at para. 96.  However, since then the SSAG have often been used in determining spousal support in variation proceedings; this was sanctioned by Lauers J.A. in Gray v. Gray, 2014 ONCA 659 where the SSAG were applied on variation proceedings, and Lauers J.A. specifically distinguished Fisher from variation proceedings.  See also Slongo v. Slongo, [2017] O.J. No. 4564 (C.A.) at para. 105, a variation case where Janet Simmons J.A. states that the SSAG, “while not binding, should not be lightly departed from.”

It is doubtful that a change in spousal support alone under the SSAG would be a “change in circumstances” within the meaning of s. 17.   However, Fisher and Slongo both confirm that, where the SSAG are applicable, they are presumptive and the court must explain why it is departing from the SSAG where it determines that it is going to do so.  This is a “guidelines driven” age in the determination of support in family law matters and for good reason; to remove uncertainties from the determination of support gives parties consistency and permits the settlement of support issues without resort to the courts.”

         Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 22-23

“Court orders are not proposals, recommendations or suggestions.  They are commands.  Parties are required to comply with them.  See:  Chapel v. Hillock, 2015 ONSC 4168.  A parent has an obligation to do what is necessary and to actively require the children to comply with the terms of the court order by explanation, exhortation, inducement, entitlement and the threat of discipline.  See:  Purcaru v. Purcaru, 2010 ONSC 4031.  The explanations offered by A.M.T. for her failure to comply, including delay in preparing the children to return, are neither reasonable nor satisfactory.”

         A.C.V.P. v. A.M.T, 2019 ONSC 1559 (CanLII) at 275

“The concept of parallel parenting initially emerged in the social work realm rather than on the legal landscape.  In that context, it was used to describe arrangements where there was either a sole or joint custody order in effect, but the parties were granted the right to make daily decisions and establish their own routines for the children during their residential time (Peter G. Jaffe et. al., “Custody Disputes Involving Allegations of Domestic Violence:  Toward a Differentiated Approach to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500 at 516-17, cited in Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).  On the legal front, the concept of parallel parenting has morphed into a phrase that describes regimes respecting major decision-making.  There are four main types of arrangements that have been described as “parallel parenting” regimes in the case-law, as follows:

1. 1. 1. 1.   First, in some cases, the phrase has been used to describe an order that grants joint custody to the parents in all traditional major areas of decision-making such as medical, educational, religion and extracurricular activities, but which specifically states that each parent has the right to make daily decisions and to establish parenting styles and routines independently of each other.  This arrangement is often referred to as “joint custody in the parallel parenting mode.”  The phrase was used in this fashion in Mol v. Mol, 1997 CarswellOnt 3693 (S.C.J.), L.(A.) v. M. (C.), 2010 CarswellNB 58 (Q.B.)and by the trial judge in Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.).  While the term “parallel parenting” was used in these cases, the type of arrangement under consideration in these decisions was essentially a traditional joint custody arrangement, but which specified that the parties could make day-to-day decisions and establish their own routines during their residential time.   In practice, a traditional joint custody order has been presumed to include these rights to make daily decisions and establish household routines.  The real distinction between a traditional joint custody order and the orders made in this line of decisions is that the orders in these cases also included numerous detailed terms about day-to-day parenting issues to assist the parties in managing areas that have been problematic.  In order to avoid confusion in terminology, it is helpful to refer to this type of order as a “multi-directional joint custody order.”
         2.   A second line of cases has used the phrase “parallel parenting” to describe a regime which divides up the major areas of decision-making between the parties, such that each party has sole, final decision-making authority in specified areas (Moyer v. Douglas, 2006 CarswellOnt (S.C.J.);  Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.);  V.K. v. T.S., 2011 ONSC 4305(S.C.J.);  Suchanek v. Lavoie, 20140 CarswellOnt 1236 (O.C.J.);  Baetans v. Arthurs, 2013 CarswellOnt 5112 (Div. Ct.)).  In the case of V.K., I described this type of arrangement as a “divided parallel parenting regime.”  As in the first line of cases, these types of orders typically also give each parent the right to make general day-to-day decisions and establish daily routines during their residential time, and set out specific and very detailed terms regarding the management of problematic issues.  Some cases have also referred to this type of arrangement as “joint custody in the parallel parenting mode.”  Again, this causes confusion, since this type of order does not require the parties to make major decisions together. The descriptor “divided parallel parenting” is helpful for this type of arrangement, since it reflects that the major areas of decision-making are divided up between the parties.
         3.  A third manner in which the courts have used the phrase “parallel parenting” is to describe an arrangement that essentially grants each parent the right to make major decisions respecting the child in all important areas of parental authority during their residential time, without the consent or involvement of the other parent (see Mol v. Mol, 1997 CarswellOnt 3693 (Gen. Div.); Ursic).  As I indicated in V.K. the phrase “full parallel parenting” is helpful to describe this type of custodial arrangement, since the parents are essentially exercising full decision-making in all areas during their time with the child, but independently of each other.  These types of orders typically require the parties to confer with each other before making a major decision.  In Ursic, the Ontario Court of Appeal upheld such an order on appeal.
         4.   A fourth line of cases that have used the phrases “parallel parenting” or “joint custody in the parallel parenting mode” are those where the parties are granted joint custody, the order sets out specific steps they must take to resolve any differences about major decisions, and the order goes further to state that if they still cannot agree, each party has final say in specified areas of decision-making (see for example  Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.),  aff’d 2007 ONCA 898 (CanLII), 2007 CarswellOnt 8271 (C.A.);  Desjardins v. Desjardins, 2013 CarswellOnt 4496 (S.C.J.);  Plugers v. Krasnay, 2014 ONSC 7078(S.C.J.), aff’d 2016 ONCA 279 (C.A.)).  For the sake of clarity in terminology, I find it useful to refer to this type of arrangement as “joint custody with a divided parallel parenting fallback.”
         5.  Finally, “parallel parenting” has been used to describe hybrid-type custodial arrangements, where the order requires the parties to make some major decisions together, but then divides up other areas of decision-making between the parties (see for example Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.),  reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Grindley v. Grindley, 2012 O.J. No. 3717 (S.C.J), where the court ordered joint custody respecting the children’s activities, but divided parallel parenting in regard to all other areas of decision-making).   In some cases, the orders add an additional layer of complexity by ordering a joint custody with a divided parallel parenting fallback plan in certain areas of decision-making.  Again, in order to avoid confusion respecting terminology, I refer to this type of arrangement as a as a “hybrid” custody regime.”

Jackson v. Jackson, 2017 ONSC 1566 (CanLII) at 68

“With respect, the trial judge erred in his interpretation and application of the separation agreement by failing to give effect to the reconciliation clause that voids the agreement upon reconciliation for more than 90 days.

As this court stated in Sydor, at common law, the effect of reconciliation of separated spouses is to void the separation agreement subject to (a) a clause in the agreement that provides to the contrary or (b) a clause that indicates the intent of the parties that transactions carried out under the agreement will remain in place: at para. 22.

In this case, unlike in Sydor, the separation agreement provides for what will occur if the parties reconcile. By preserving the agreement if the reconciliation is very short-lived, it encourages the parties to attempt to reconcile without fear of the effect of the common law undoing the separation agreement. However, where the reconciliation is successful and lasts for more than 90 days, it essentially confirms the common law result. That is, in the event of a successful reconciliation, the separation agreement is void, except that payments, conveyances or acts that have been completed to carry out the agreement will not be invalidated.

Here, the reconciliation lasted for almost nine years. Therefore, the separation agreement is void, except that “any payment, conveyance or act” completed under the agreement will not be invalidated.”

Miaskowski v. MacIntyre, 2020 ONCA 178 (CanLII) at 18-21

“Marriage contracts result in a world of second thoughts.  Often signed with marriage pending, they speak to business at a time when those types of thoughts are foreign to the parties.  Because of this, the negotiation of an agreement is often hasty and ill thought out.  Notwithstanding this, marriage contracts are often of long-lasting effect, both during the marriage and after.  The terms, which might have seemed fair at the time, may also result in seemingly inequitable situations resultant from waivers of spousal support or property claims after a long-term relationship, leaving one party in apparent poverty and without recourse to remedies that he or she might otherwise have on marriage breakdown.”

         Ord v. Ord, 2019 ONSC 1563 (CanLII) at 1

“Shirley wants Galo to produce “full financial disclosure” from his wife because she believes that Galo’s wife is secretly holding Galo’s assets and is colluding with Galo who is attempting to evade paying spousal support. Shirley also wants all of Galo’s income tax returns and Notice of Assessment from 2004 to date so that she can calculate the annual spousal support increases that were not paid.

The request for extensive disclosure and a valuation is denied. My reasons follow.

The request for this disclosure is premised on mere speculation and is unreasonable.

In his sworn financial statement, Galo disclosed his wife’s income and their equal sharing of expenses. This level of disclosure from a new partner is typically sufficient (as in this case), to address the financial circumstances of a payor or payee, who has a new partner. There is no right to disclosure beyond these essential facts.

A former spouse is not entitled to the “full financial picture” of a spouse’s new partner by right. Such disclosure would be extensive and intrusive. As Justice Kristjanson stated in Politis v. Politis, 2018 ONSC 323 at para. 17:

Compelling the production of personal income, asset and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding, and any production order carefully scrutinized.”

                  Angulo v. Angulo, 2019 ONSC 1456 (CanLII) at 53-57

“However, the court has no jurisdiction to make a refraining order where Mr. Sherwood has received a Final Notice, as opposed to a First Notice.  Under section 35 of the Family Responsibility and Support Arrears Enforcement Act, S.O., 1996, c. 31, as amended, a payor may make a motion for a refraining order when served with a First Notice. Under section 35(10), a court may make a refraining order only before the 30-day period if the First Notice expires. There is no provision for the court making a refraining order after that 30-day period.”

         Young v. Sherwood, 2020 ONSC 2038 (CanLII) at 10

“In R. v. Campbell, 1999 CanLII 676 (SCC), [1999]1 S.C.R. 565, 43 O.R. (3d) 256, at para. 49, the Supreme Court of Canada described solicitor-client privilege as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or the legal adviser, exception the protection be waived.

In R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 36, Arbour J. underscored the importance of solicitor-client privilege, finding that it is fundamentally important to our judicial system, and concluding that it “must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis”.

Solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result: Descôteux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, 44 N.R. 462, at para. 27; Biehl v. Strang, 2011 BCSC 213, [2011] B.C.J. No. 274, at para. 39.

In Biehl, at para. 39, the court set out the principles applicable to waiver of solicitor-client privilege, including that waiver of solicitor-client privilege may occur in the absence of an intention to waive, where fairness and consistency require it. Waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.

A party will waive the protection of solicitor-client privilege when it voluntarily injects into the proceeding the question of its state of mind, and, in doing so, uses as a reason for its conduct the legal advice that it has received: Biehl, at para. 39.

To displace solicitor-client privilege, there must be an affirmative allegation which puts the party’s state of mind in issue: Biehl, at para. 39.

In Benson v. Kitt, 2018 ONSC 7552, at para. 16, the court held that a deemed waiver and an obligation to disclose a privileged communication requires two elements: (i) the presence or absence of legal advice must be relevant and material to a claim or defence; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence.

Privilege can be waived expressly, inferentially or by conduct: Biehl, at para. 42. A witness can implicitly waive privilege through their conduct including by putting the legal advice they received in issue, or by testifying about privileged communications. The guiding principles in an enquiry about whether privilege has been waived must be fairness and consistency: Spicer v. Spicer, 2015 ONSC 4175, at para. 13.

The disclosure of receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. The question is whether the party disclosing the legal advice has opened an inquiry into whether the legal advice effected his state of mind. In the majority of cases, placing state of mind at issue will not amount to waiver. However, where a party has placed its state of mind at issue and given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained: Spicer, at paras. 13-15.”

            Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 12-20

“To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.

Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada’s Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:

[There should be] a process that offers no legal confirmation of a spouse’s contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations—not dissolution, not financial advantage, not a privileged position vis-à-vis the children.

In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the “undesirability of provoking suits within the family circle.” As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved—especially to the welfare of the child—and will invite a flood of cases. See also Louie v. Lastman (2001), 2001 CanLII 28066 (ON SC), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed (2002), 61 O.R. (3d) 459 (C.A.), and Saul v. Himel (1994), 1994 CanLII 18262 (ON SC), 9 R.F.L. (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 1996 CanLII 10207 (ON CA), 22 R.F.L. (4th) 226 (Ont. C.A.).

Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that “the legislature intended to devise a comprehensive scheme” that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.

When a couple’s dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. There is a corresponding obligation “placed equally upon both parents” to financially support the child: Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has confirmed that:

the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 208).

The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

It would be contrary to the spirit, purpose and policy reflected in Ontario’s no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.

The appellant asserts that he accepts and has complied with his statutory duty to pay child support. Nevertheless, the appellant seeks to recover in excess of $4 million in damages from the child’s mother in compensation for losses flowing from the child’s birth and his responsibilities toward that child. In the circumstances of this case, to allow the appellant’s claim would, in effect, be to allow the appellant to circumvent the equal obligations to the child imposed on parents by law—obligations that are imposed without regard to fault or intention.

Little would distinguish this proposed claim from claims other parents may decide to bring against their former spouses or sexual partners seeking compensation for the burdens imposed on them by the birth of an unwanted child, where it is claimed that the child’s conception was the result of a misrepresentation, duress, or even the negligence of the former spouse or sexual partner with respect to matters such as fertility or contraceptive use or misuse. Such actions would engender disharmony between mothers and fathers and would be contrary to the spirit of this province’s family law legislation.

…

For these reasons, as a matter of legal policy the alleged damages should not be recoverable in tort. Therefore, this is not the kind of novel claim that ought to be allowed to proceed to a protracted and expensive trial: see Arora v. Whirlpool Canada LP, 2013 ONCA 657, [2013] 118 O.R. (3d) 113, at para. 94.”

         PP v. DD, 2017 ONCA 180 (CanLII) at 57-65, 68

“The order under appeal was made in the course of ongoing family law proceedings. The order requires that the appellant make certain payments, including monthly spousal and child support payments to the respondent.

Paragraph 7 of the order reads:

In the event that the Husband fails to comply with paragraph 5 above, the Wife may move without further notice to the Husband to strike his pleadings involving all financial issues between the parties.

The appellant appeals essentially on the ground that he genuinely cannot pay the amounts ordered and that the effect of para. 7 is to deny him any opportunity to participate any further in the ongoing proceedings. Counsel for the appellant refers to this as a “catch 22”.

The appellant’s credibility in this litigation has been the subject of adverse comment. His asserted impecuniosity is strongly challenged by the respondent. In any event, even if the appellant is impecunious, that fact does not assist in determining the appropriate appellate forum. We agree with counsel for the moving party that the terms of the order requiring payments towards spousal and child support are interlocutory. A term like para. 7, directed at the consequence of non-compliance with the order, cannot alter the nature of the order: see J.K. v. Ontario, 2017 ONCA 332, at para. 18.

The order is interlocutory. The appeal is quashed. We do not reach the motion for security for costs.”

        Benarroch v. Abitbol, 2018 ONCA 203 (CanLII) at 2-5