Category: Uncategorized

“The application judge correctly stated the general legal principles applicable to the dispute: for most categories of relationships, including the one involved here, there is a rebuttable presumption of a resulting trust where one party makes a transfer of property to another for no consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 2 S.C.R. 795, at para. 24. A purchase money resulting trust is a type of resulting trust. It arises “when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1. Where the person taking title is not the minor child of the person advancing the funds, there is a presumption that “the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution”: Nishi, at para. 1.

Paula argued on appeal that having a third party take title to avoid merger under the Planning Act is a bar to relying on the presumption of resulting trust. This proposition is not supported by the case law and is inconsistent with general principles. Where a resulting trust is presumed, the onus is on a party seeking to rebut that presumption to establish that the purchaser intended to make a gift: Lattimer v. Lattimer, (1978), 1978 CanLII 1547 (ON SC), 18 O.R. (2d) 375, at p. 378 (H.C.). This is not a matter of constructive or deemed intention, but of establishing actual intention, requiring a case-by-case evaluation of the evidence to ascertain the gratuitous transferor’s actual intention on the balance of probabilities: Schwartz v. Schwartz, 2012 ONCA 239, 349 D.L.R. (4th) 326, at paras. 42-43. The intention to avoid merger does not necessarily entail the intention to make a gift.”

            Falsetto v. Falsetto, 2024 ONCA 149 (CanLII) at 17-18

“If the court finds that there has been family violence then s 24(4) directs the court to take into account the factors set out in that subsection when considering the impact of that family violence.

Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260 (CanLII); Mattina v. Mattina, 2018 ONCA 641.

The Supreme Court of Canada has specifically addressed the issue of family violence in the context of the best interests analysis under the Divorce Act, the provisions of which are similar to the CLRA: Barendregt v. Grebliunis, 2022 SCC 22. Findings of family violence are a critical consideration in the best interests analysis.  Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives and can result from direct or indirect exposure to domestic conflicts.

The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship.  Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation parenting.  Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency: Abaza v. Adam, 2023 ONSC 1776.

Children may experience family violence in a variety of ways; they may be the direct victims of family violence, they may be directly exposed to family violence by one family member towards another or may experience the aftermath by observing injuries, seeing police and CAS investigations as well as observing the emotional turmoil that follows: S.V.G. v. V.G., 2023 ONSC 3206.

Violence may not be physical but may be emotional or psychological. Denigrating the other parent in front of the children or within earshot meets the definition and can be devastating to the child.

Parents should be encouraged to resolve disputes outside the court when not affected by family violence or a power imbalance: Colucci v. Colucci, 2021 SCC 24. It is therefore essential that the court consider whether a co-operative parenting arrangement is appropriate where there has been family violence.

The court also must remain alive to the possibility that some allegations are fabricated or exaggerated.  Ignoring such a possibility poses a serious threat to the furtherance of justice in cases where family violence claims are advanced; the court must ensure that the claims are credible and that they are not being advanced to obtain a litigation advantage: S.V.G. v. V.G., 2023 ONSC 3206.

Unwarranted calls to authorities, such as the police and CAS can be psychological abuse as can surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts: K.M. v. J.R., 2022 ONSC 111; Dayboll v. Binag, 2022 ONSC 6510.”

          Sinclair v. Quade, 2024 ONSC 1098 (CanLII) at 38-46

“There are three bases for entitlement to support, as explained by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420: contractual, compensatory, and non-compensatory (also called “needs-based”). The contractual entitlement to support reflects “the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup”: Bracklow, at para. 18. Under s. 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court must have regard to any “order, agreement or arrangement relating to support of either spouse”.

The compensatory basis for entitlement applies “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage”: Bracklow, at para. 18. The court in Bracklow, at para. 39, further notes:

Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument.

Lastly, the court in Bracklow, at paras. 40-41, describes the non-compensatory basis for entitlement. This requires:

…[T]he court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application…

…Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense…

These bases for spousal support are complemented by the objectives of variation orders for spousal support set out in s. 17(7) of the Divorce Act:

17 (7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

It is with these policy objectives in mind that the appellant’s motion for a variation in spousal support must be assessed.”

          Hendriks v. Hendriks, 2022 ONCA 165 (CanLII) at 41-45

“As I noted earlier, the motion judge appeared to accept that on an interim motion to vary a final parenting order, the stringent legal test in F.K. is apt, but cautioned that read in isolation, the F.K. decision might result in a judge placing too much emphasis on maintaining the status quo. This, in turn, could skew the legal analysis, which remains the best interests of the child. He later accepted that before making such an order, he was “obliged to demonstrate why the change from the status quo is compelling.” But upon reviewing his analysis, which I have outlined, it is plain that he rejected the meaning given to the concept of compelling circumstances in the caselaw, including his own decision in Hartman, conflated his determination of the best interests of the child with a finding of compelling circumstances, and effectively threw the caution required on an interim motion to the wind.

In this regard, it is telling that the motion judge reached his conclusion about the best interests of the child first, and then reasoned backwards, simply labelling as compelling the two principal considerations that informed his determination that a change was in the best interests of the child. Whether or not these considerations would provide justification for a change on a final and full hearing, it is impossible to imagine that a contradictory statement of the child’s preference together with the desirability to reduce the number of transitions between parents are compelling reasons to make a temporary change.

It is also telling that although the motion judge properly took into account the stress that O. was under in concluding that there were compelling circumstances that justified a variation of the final order, he did not explain how the change in parenting schedule would in any way reduce that stress. In fact, there is nothing in the record that could explain it.

In my view, the reasons of the motion judge underscore the rationale for limiting relief such as this on interim motions to exceptional or urgent circumstances.  As I have already noted, in Hartman, the motion judge adopted the following statement of the law, which bears repeating:

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.”

S.H. V. D.K., 2022 ONSC 1203 (CanLII) at 55-58

“Section 22 of the CLRA sets out the circumstances under which a court in Ontario has jurisdiction over parenting and contact orders. Section 22(1)(a) specifies that the “court shall only exercise its jurisdiction” over such orders where “the child is habitually resident in Ontario at the commencement of the application for the order”. Section 22(2) defines a child’s habitual residence as including where a child resides in Ontario with one parent with the other parent’s “consent, implied consent or acquiescence”:

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. 1. 1. 1. 1. 1. With both parents.
               2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the otheror under a court order.
               3. With a person other than a parent on a permanent basis for a significant period of time. [Emphasis added.]

Section 22(1)(b) also provides that a court in Ontario can exercise jurisdiction where a child is not habitually resident in Ontario but the court is satisfied that the following circumstances exist:

(i)   the child is physically present in Ontario at the commencement of the application for the order,

(ii)   substantial evidence concerning the best interests of the child is available in Ontario,

(iii)  no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv)  no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v)   the child has a real and substantial connection with Ontario, and

(vi)  on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Section 22(3) specifies that a child’s habitual residence is not Ontario where the child has been taken to Ontario in the following circumstances:

The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

Finally, s. 23 of the CLRA provides that, despite s. 22, the court in Ontario can exercise its jurisdiction over a parenting or contact order where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm if:

(i)   the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii)   the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii)  the child is removed from Ontario.

As noted by the motion judge, in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal refused, [2012] S.C.C.A. No. 348, at paras. 9 to 13, this court specified that there are four different circumstances in which a court in Ontario has jurisdiction to make an order respecting child custody (now referred to as parenting time and decision-making responsibility) under the CLRA:

The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.

First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is “habitually resident” in Ontario.

Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.

Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.

Fourth, the court may exercise its parens patriae jurisdiction,

which is specifically preserved by s. 69 of the CLRA.”

            Los v. Ross, 2024 ONCA 122 (CanLII) at 28-29

“For the court; when faced with a Contempt Motion, I must first find that certain elements must be proven beyond a reasonable doubt.  The order must be clear and unequivocal; the party disobeying the order must do so deliberately and wilfully; and the breach must be proven beyond a reasonable doubt. (because this is a quasi-criminal proceeding). (Vigneault v. Massey, 2014 ONCA 244).  Additionally, the Ontario Court of Appeal has made it clear that motion judges should make findings of contempt cautiously and with great restraint especially where the main issues to be decided concern access to children because the best interest of the children should be the paramount consideration. (Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144).”

            Youngman v. Dobney, 2020 ONSC 1292 (CanLII) at 15

“In this case, the parties seek a decision on costs where there is no judge who has dealt with the step who could render a costs decision. I would have been the trial judge, but no trial proceeded before me. I thus come to this costs determination without any prior knowledge of the parties’ litigation, positions or evidence. I have no record of judicial fact finding on issues relevant to costs, and no evidentiary record before me on which to make findings.

The parties’ minutes of settlement expressed a preference for written submissions to deal with costs, no doubt to save expense. This is not a silly concern. As Leach J. observed in Witherspoon v. Witherspoon, 2015 ONSC 6378 at para. 42, attempts to address cost issues in a post-settlement context are unlikely to promote judicial economy. He wrote:

…application of the cost rules presupposes that the court is in a position to rely on factual or other objective findings that either support or detract from the parties’ respective submissions. However, that self-evidently will not be the case where the parties rely on matters and considerations that have never been the subject of any judicial fact finding, or corresponding judicial determination on issues or reasonableness, unreasonableness, or alleged misconduct. The parties in the case before me seem to have come to such a realization either consciously or instinctively, given their respective efforts to now revisit contentious issues and evidence, and belatedly have such matters resolved in their favour in order to justify their cost positions. However, an exercise that effectively encourages and requires the parties and the court to revisit and essentially litigate such issues, which supposedly have been resolved by a substantive settlement, seems entirely and inappropriately retrograde in nature.”

            Hassan v. Hassan, 2019 ONSC 1199 (CanLII) at 10-11

“As conceded by Ms. Amorim, the application judge started with the correct legal test. Section 44(1) of the Pension Benefits Act provides that every pension paid to a member who has a spouse is to be paid out on a “joint and survivor pension” basis unless, pursuant to s. 44(4)(b), the member and his or her spouse are living “separate and apart” on the date that the first pension payment is due. (Footnote: The Pension Benefits Act has since been amended and the “living separate and apart” exception to the definition of “spouse” is now found in s. 44(1.1). In determining whether Mr. Carvalho and Ms. Amorim were living “separate and apart” at the relevant time, the application judge turned to the case law under s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He described the following indicia, derived from Greaves v. Greaves (2004), 2004 CanLII 25489 (ON SC), 4 R.F.L. (6th) 1 (Ont. S.C.), at para. 34, as relevant to his determination of whether the parties were living separate and apart:

a.   Physical separation, however, this is not the deciding factor as spouses may remain together for economic reasons;

b.   A withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship;

c.   the absence of sexual relations however this is not a conclusive factor;

d.   discussions of family problems and communications between the spouses;

e.   presence or absence of joint social activities; and

f.   the true intent of a spouse as opposed to a spouse’s stated intent.”

            Carvalho v. Amorim, 2022 ONCA 158 (CanLII) at 11

“In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada explained at paras. 206-208:

a.   Similar considerations to those set out in the context of child support (as per D.B.S. v. S.R.G., 2006 SCC 37) are relevant to deciding the suitability of a retroactive award of spousal support:

b.    The factors include:

1. 1. 1. 1. 1. 1. The needs of the recipient;
               2. The conduct of the payor;
               3. The reason for the delay in seeking support; and
               4. Any hardship the retroactive award may occasion upon the payor spouse.

c.   The factors may be weighted differently in retroactive child support v. spousal support cases and in particular, concerns regarding notice, delay and misconduct generally carry more weight in relation to claims for retroactive spousal support.

Generally, in assessing claims for retroactive adjustments of spousal support, the default commencement date is the date of effective notice, to a maximum of three years prior to the date of formal notice: Kerr at para. 211. Effective notice is the date that the support recipient “broached” the subject of an increase in support with the payor: see D.B.S. at paras. 118-121. In the case before this court the date of effective notice and the date of formal notice are one and the same: Mr. Nault was served with Ms. Nault’s Motion to Change on April 4, 2019. There is no suggestion that the topic of a variation of the March 2013 Order was ever raised between the parties in the intervening period of time.

In this case, Ms. Nault urges the court to find that Mr. Nault engaged in blameworthy conduct, by failing to disclose his income annually in accordance with the requirements of the 2013 Final Order of MacPherson J. Such a finding would permit the court to vary the support award retroactively to August 1, 2013, in the court’s discretion.

In circumstances wherein a payor is found to have engaged in blameworthy conduct, the “presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially”: D.B.S., at para 124. The blameworthy conduct of payors has again been explored more recently in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102, and Colucci and Colucci, 2021 SCC 24, [2021] S.C.J. No. 24. Notably, all of these Supreme Court of Canada authorities relate to requests for retroactive adjustment of child support rather than spousal support. In these appellate cases the court explains that, since the advent of the federal and provincial Child Support Guidelines, parents are generally presumed to know about the existence and extent of their support obligations, in accordance with the applicable child support Table. It is therefore logical that any failure to disclose increases in income and to make upward adjustment of support in the amount prescribed by the Guidelines may constitute blameworthy conduct warranting a retroactive adjustment which predates effective or formal notice by the recipient: see Colucci, at para. 44. It is abundantly clear that proactive, fulsome disclosure of income is a fundamental obligation of any payor parent.

However, as explained in Kerr, the obligations of a payor spouse are vastly different than the obligations of a payor parent. In spousal support cases, the quantum of support ordered payable by the court is presumed to be correct until the parties agree or a court orders that the quantum payable is (or was) no longer appropriate: at para 208. There is no presumptive entitlement to increases in spousal support commensurate with a payor’s income, as is the case with child support, because the basis of the entitlement and the needs of the recipient, amongst other things, are also important features of most spousal support claims. In A.E. v. A.E., Chappel J. concluded that, despite the Supreme Court of Canada’s recent revisions made to the law of retroactive child support in Michel and Colucci, reflecting a further acceptance and expansion of the concept of blameworthy conduct, the applicable framework for determination of retroactive spousal support claims remains as set out in Kerr v. Baranow: 2021 ONSC 8189 at para. 479. I agree.”

            Nault v. Nault, 2022 ONSC 904 (CanLII) at 49-53

“The Supreme Court of Canada set out the standard of appellate review in family matters in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, followed by the Ontario Court of Appeal in Sferruzzi v. Allan, 2013 ONCA 496, at para. 43.

The standard for review on issues of law is correctness.

On issues of fact, there is deference given to the trial judge. To succeed in an appeal from a finding of fact, an appellant must show that the trial judge made a “palpable and overriding error” on an issue of fact.

Absent an error or misapprehension of relevant evidence, the assignment of weight to any piece of evidence or to any of the factors to consider, is for the trial judge to decide. The deference principle prevents an appellate Court from conducting a de novo hearing or de novo weighing of evidence or of the factors to consider: Pike v. Cook, 2005 CanLII 39322 (Ont. C.A.), at para. 4.

Custody and access decisions require a trial judge to conduct a careful balancing of competing interests based on the evidence.  For that reason, a trial judge’s decision on custody and access must be approached by the appellate court with considerable respect and deference: C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14; Marcus v. Lebedoff, 2003 CanLII 32921 (Ont. S.C.).”

            Myrda v. Kajko, 2024 ONSC 948 (CanLII) at 26-30