Author: dawi

“There is no dispute that courts generally have the power to award retroactive child and spousal support where warranted. Although the two claims are distinct, the considerations and criteria underlying both awards, and the arguments relating to them, overlap. That said, there remain differences in the approaches to them. Relying on the analysis of Bastarache J. in D.B.S. v. S.G.R., 2006 SCC 37, [2006] 2 S.C.R. 231, (a retroactive child support case), Cromwell J. summarized this in Kerr v. Baranow, 2011 SCC 10, [2010] 1 S.C.R. 369, (a retroactive spousal support case), at paras. 206-7 in the following way:

… I prefer to follow the example of Bastarache J. in [D.B.S.] and consider the relevant factors that come into play where support is sought in relation to a period predating the order.

While [D.B.S] was concerned with child as opposed to spousal support, I agree … that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reasons for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.  I will mention some of those differences briefly, although certainly not exhaustively.

The primary difference highlighted by Cromwell J. relates to the different legal foundations upon which child and spousal support are based. Child support is automatic; spousal support is not. Cromwell J. articulated this at para. 208:

Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and 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. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see [D.B.S.], at paras. 36-39 ,47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interest.  Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. [Emphasis added.]

In the context of dealing with both retroactive spousal and retroactive child support claims, Kerr and D.B.S. both emphasize, in the end, “the need for flexibility and a holistic view of each matter on its own merits”: Kerr, at para. 212; D.B.S., at para. 99.”

Rosenberg v. Gold, 2016 ONCA 565 (CanLII) at 41-43

“I am also not prepared to impute to the father an income on account of the monetary gifts he and his family have received from his parents.  In Bak v. Dobell, 2007 ONCA 304, 86 O.R. 3(d) 196, the Ontario Court of Appeal stated at para. 74:

Although it seems that legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

In considering whether it would be appropriate to do so, the Court of Appeal stated that a court had to consider the following factors:

–    The regularity of the gifts;

–    The duration of their receipt;

–    Whether the gifts were parent of the family’s income during cohabitation that entrenched a particular lifestyle;

–    The circumstances of the gifts that earmark them as exceptional;

–    Whether the gifts do more than provide a basic standard of living;

–    The income generated by the gifts in proportion to the payor’s entire income;

–    Whether they are paid to support an adult child through a crisis or period of   disability;

–      Whether the gifts are likely to continue;

–      And the true nature and purpose of the gifts.”

K.A.F. v. J.L.F., 2017 ONSC 4279 (CanLII) at 20-21

“The Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 established that the CYFSA is particularly remedial for Indigenous children. The court is to consider the importance of preserving a child’s cultural identity and connection to her community in recognition of the uniqueness of First Nations, Inuit, and Métis cultures, heritages, and traditions.

The preamble of the CYFSA includes the following:

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

The finding that the child is First Nations is important and should be made as early as possible in the proceedings because it triggers obligations for the Society and the court. The Society is to give special consideration and provide specialized services. Their decisions are to recognize the importance of the child’s cultural heritage and connection to the community. The court is also to consider these issues prior to making findings and reaching disposition.

The court was left to balance the objectives and mandate of the legislation. On the one hand, it is essential to move these matters on toward a permanent resolution for the benefit of the child. The mandate of the legislation includes, as one of its purposes, providing services in a manner that ensures “early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests.”

Kawartha-Haliburton Children’s Aid Society v. AR and DB, 2019 ONSC 4191 (CanLII) at 4-7

“Over the course of a three day trial, the application judge heard testimony from 8 witnesses and reviewed the written record containing 20 affidavits. As this court stated in A.M.R.I. v. K.E.R., 2011 ONCA 417, at para. 88,

A Hague application judge’s decision attracts considerable deference from this court … [A]ppellate review of a Hague decision is not a hearing de novo or an invitation to relitigate the matters determined on the application: Katsigiannis at para. 30; Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), [2004] O.J. No. 3256, 242 D.L.R. (4th) 385 (C.A.), at para. 10.  But, the deference usually accorded to a Hague ruling is displaced where the Hague application judge applied the wrong legal principles or made unreasonable findings of fact: see Jabbaz v. Mouammar, 2003 CanLII 37565 (ON CA), [2003] O.J. No. 1616, 171 O.A.C. 102 (C.A.), at para. 36; Katsigiannis, at para. 31.”

Bazargani v. Mizael, 2015 ONCA 517 (CanLII) at 12

“Since the release of Ribeiro, other courts have consistently held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others: Skuce v. Skuce, 2020 ONSC 1881, at para. 85.

I find that the respondent is not prepared to follow COVID-19 protocols in the future. The applicant has established that the respondent’s behaviour is of the sort contemplated by Pazaratz J. when he wrote, “in some cases a parent’s lifestyle or behaviour in the face of COVID-19… may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.” The respondent has demonstrated no parental insight, or COVID-19 awareness.

The respondent is aware that his behaviour has led to the applicant suspending what was his significant parenting time with I.S.. Despite the government and public health messages about the risk of COVID-19, despite the applicant’s clear will to act in the face of her concerns, despite the case law that suggests that courts will take COVID-19 seriously, the respondent has preferred his agenda – politicizing a virus – over his parenting time with his son.

In these circumstances, given the respondent’s complete failure and unwillingness to follow COVID-19 protocols, now or in the future, I order that, on a temporary basis, I.S.’s primary residence shall be with the applicant. The respondent’s parenting time shall be by video only, three times weekly, on Mondays, Tuesdays and Wednesdays, at 12:45 p.m., to be facilitated by the child’s nanny, or otherwise as the parties may agree.

The respondent may resume in-person parenting time with I.S. with the agreement of the applicant. If she does not agree, he may apply to the court for a resumption of in-person parenting time after (i) he obtains a negative test result for COVID-19 or alternatively, self-isolates for fourteen days, and (ii) he begins following and commits to continue following government and public health protocols with respect to the coronavirus.”

A.T. v. V.S., 2020 ONSC 4198 (CanLII) at 19-23

“The appellant’s attack on the motion judge’s decision rests in part on unsworn financial information filed for the first time on appeal. This information purports to set out the value of the parties’ assets, and, he alleges demonstrates inaccuracies in the respondent’s financial statement on which the uncontested order was based.

The most fundamental obligation of a party to a family law action is to make early, complete financial disclosure. The appellant has never filed a financial statement. It is not open to him now to rely on unsworn financial information that was not part of the record before the motion judge.”

         Mackey v. Rerrie, 2016 ONCA 541 (CanLII) at 5-6

“The test with respect to when a party’s conduct amounts to “bad faith” is set out in several cases.  It may be summarized from Scalia v. Scalia, 2015 ONCA 492 (Ont. C.A.) (CanLII) as para 68:

[68]      The application judge was obliged to identify and apply the legal test governing bad faith in this context. This he did not do. The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff’d 2010 ONCA 196 (CanLII), 2 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.”

Fox v. Fox, 2018 ONSC 4156 (CanLII) at 21

“There is a large body of caselaw on civil contempt in family proceedings.  From that body of caselaw, I distill the following legal principles:

a.  The purpose of a contempt order in Family Law is to force compliance by the defaulting parent with an order, not punishment for non-compliance.  The contempt order acts as a deterrent to the specific offender and others of a similar disposition from defying court orders and from undermining the administration of justice (Starzycka v. Wronski, 2005 ONCJ 329 (CanLII), [2005] O.J. No. 5569 (C.J.), at para. 16).

b.  Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Disobedience must have consequences (Purcaru v. Purcaru,2010 ONSC 4031 (CanLII), at para. 37, aff’d 2010 ONCA 92 (CanLII)).  The court makes decisions when the parties cannot do so, or where supervision of the decision is required to protect the children.  Whether an order is on consent or results from a contested hearing is of no moment.  The orders are of equal force and must be obeyed.

c.  Contempt is a remedy open to either party under FLR 31. It is also a remedy that the court can impose on its own initiative where the court is required to uphold the integrity of the legal system. (Zalman v. Zalman, [2002] O.J. No. 1818 (S.C.)).

d.  Civil contempt is the “big stick” of civil litigation, a remedy of last resort imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed (Hefkey v. Hefkey, 2013 ONCA 44 (CanLII), at para. 3, Fisher v Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (Ont. S.C.), at para. 11, Woronowicz v. Conti, 2015 ONSC 5247 (CanLII), at para. 17, Godard v. Godard, 2015 ONCA 568 (CanLII), at para. 17, Carey v. Laiken, 2015 SCC 17 (CanLII), at para. 36, and most recently in Ruffolo v. David, 2019 ONCA 385 (CanLII), at para. 18).

e.  The paramount consideration in access cases is the best interests of children, and the courts ought to encourage the parents to involve professionals to speak and work with the children to address their relationship with their parents (Ruffolo, supra, at para. 19).

f.  Contempt proceedings arise frequently in family cases because of lack of compliance with orders (Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007] O.J. No. 3264 (S.C.), at para. 23).

g.  In order for the court to find contempt, the court must find a) that there was an order, b) the order was brought to the notice of the alleged contemnor, c) the order is clear as to what should or should not be done, d) the alleged contemnor did not obey the order, and e) that the failure to obey the order was willful and intentional.  The burden of proof is on the moving party to prove these elements beyond a reasonable doubt (Van de Mierden v. Van de Mierden, [2009] W.D.F.L. 4947 (Ont. S.C.)at para. 29, Prescott-Russell Services for Children and Adults v. G.N. (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27, Hobbs v. Hobbs, 2008 ONCA 598 (CanLII) at para. 26, Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), [2009] O.J. No. 2306 (S.C.) aff’d 2009 ONCA 856 (CanLII), Woronowicz, supra, at paras. 33-25, and Godard, supra, at para. 11).

h.  The “willfulness” that is required is that the failure to obey the order must be deliberate and not accidental or unintentional. The willfulness requirement may be met by intentional, willful or reckless disregard, or indifference to the authority of the order or the court (R. v. M.R., [2002] O.J. No. 1519 (S.C.)at paras. 219-221).

i.  The absence of contumacious intent or a justification for the breach of the order is a mitigating, not exculpatory factor, relevant to punishment, not liability.  This is especially so in family proceedings where feelings run high, a party often believes that only s/he is right and the other is wrong, there are feelings of bitterness and betrayal and self-righteousness, and that these feelings persist even after the court has made its determination such that a party feels justified in defying an order (S.R., supra, S.V. v. C.T.I., [2009] O.J. No. 816 (S.C.)at para. 6, Coletta v. Coletta, 2003 CanLII 2412 (ON SC), [2003] O.J. No. 81 (S.C.), Starzycka, supra, at para. 16 and Zadegan v. Zadegan, 2003 CanLII 49378 (ON SC), [2003] O.J. No. 5282 (S.C.), at para. 23).

j.  A parent is not entitled to ignore an order, even one made on consent.  Where a parent is concerned about harm during the other parent’s access time, the solution is to obtain an order varying access.  She or he cannot unilaterally ignore an order unless there is serious, imminent harm (R.K. v. K.T.M.K., [2007] O.J. No. 600 (S.C.)at para. 29, L.M.K. v. E.P.R., [2005] O.J. No. 5782 (S.C.), at paras. 19-20).

k.  There must be clear and compelling reasons to legally justify violation of an order. In order to do this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent harm or danger, alone, is not sufficient.  There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240 (CanLII), at para. 19; and Houben v. Maxwell, 2016 ONSC 2846 (CanLII), at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466 (CanLII), at para. 59 to 61).

l.  Whether there is a need to protect the children is a question for the Court to determine, not the parent. The parent must abide by the order and move promptly to modify the order being disobeyed (Salloum v Salloun, [1994] A.J. No. 304 (Alta. Q.B.), at para. 20; Houben, supra, at para. 23; Chatur v. De Los Reyes, [2012] O.J. No. 2690 (C.J.), at para. 31, Prescott, supra, at paras. 47-50, Ralston v. Schultz, 2005 ONCJ 44 (CanLII), [2005] O.J. No. 635 (S.C.), Docherty v. Catherwood, 2015 ONSC 5240 (CanLII)(S.C.) paras. 18-21).

m.  The children’s wishes are to be considered, depending on the children’s ages (V., supra, at para. 20).

n.  The burden of proving any defence or mitigating factor is on the responding party.  I was referred to no authority as to the nature of the burden.  As with defences and justifications in criminal law, the burden on the responding party should be on the civil standard.

o.  A parent must take all reasonable steps to ensure compliance with the order. A parent cannot justify his or her failure to follow an access order because the child did not want to go.  This makes the child responsible for the parent’s breach of the order. Often, the parent abdicates to the child the decision the parent ought to make because the parent knows that the decision the child will make will be the decision that the parent would have madeand which is one which violates the order.  The parent abdicates his or his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences. A parent’s obligation is to do what is reasonable and necessary, and actively require the child to comply with the order by explanation, exhortation, and the threat and execution of discipline (V., supra, at para. 46, Haywood v. Haywood, 2010 ONSC 5615 (CanLII), [2010] O.J. No. 4317 (S.C.), at paras. 29, 41-43, Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.), at para. 54, Geremia, supra, at para. 63, and Godard, supra, at para 29).

p.  What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child.  Usually, passive “reasoning with the child” is insufficient and is in breach of the access order.  There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child (Geremia, supra, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.)at paras. 22-25, Godard, supra, at para. 29).”

Janowski v. Zebrowski, 2019 ONSC 4046 (CanLII) at 24

“In an Application to stay a proceeding because of an arbitration provision, the Court must first interpret the arbitration provision, then analyse the claims made to determine whether they must be decided by an arbitrator under the terms of the agreement as interpreted.  If the answer to the second question is “yes” then the proceeding should be stayed and the claims referred to arbitration subject to the exceptions in s. 7(2) of the Arbitration Act, 1991 (see MDG Kingston Inc. v. MDG Computers Canada Inc., 2008 ONCA 656, para. 14; Mantini v. Smith Lyons LLP (2003), 2003 CanLII 20875 (ON CA), 64 O.R. (3d) 505 (C.A.) at para. 17).”

         Gorman v. Kosowan, 2016 ONSC 4371 (CanLII) at 17

“Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke, 2000 BCSC 1300, [2000] B.C.T.C. 681, at para. 21; Klimm v. Klimm, 2010 ONSC 1479, [2010] O.J. No. 968, at para. 28-32; Mora v. Mora, 2011 ONSC 2965, [2011] O.J. No. 2188, at paras. 38-40. A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.”

         Barber v. Magee, 2017 ONCA 558 (CanLII) at 4