“As a general rule, a payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse. However, the applicable legislation makes clear that the granting or denial of prejudgment interest is discretionary: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 130. There are exceptions to the general rule. Exceptions arise “where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial”: Burgess v. Burgess (1995), 1995 CanLII 8950 (ON CA), 24 O.R. (3d) 547 (C.A.), at p. 552; Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 43.”
Category: Uncategorized
September 23, 2024 – Appointment of Amicus Curaie
“The leading case on the issue of the appointment of amicus curaie in the context of a family law proceeding is Morwald–Benevides v. Benevides, 2019 ONCA 1023. In it, the Ontario Court of Appeal has found that the following principles apply for the appointment of amicas curiae:
[27] First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case: CLA, at para. 47. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.
[28] Second, a party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice: see, e.g., R. v. Imona-Russel (2019), 145 O.R. (3d) 197, [2019] O.J. No. 1607, 2019 ONCA 252; Zomparelli v. Conforti, [2018] O.J. No. 543, 2018 ONSC 610 (S.C.J.).
[29] Third, relatedly, while amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus: Imona-RusseI, at para. 67
[30] Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances: CLA, at para. 47. And see O. (C.C.) v. V. (J.J.), [2019] A.J. No. 992, 2019 ABCA 292, 91 Alta. L.R. (6th) 237, at para. 50. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine, as CLA noted at paras. 27-31, 83.
[33] Fifth, the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively as it would be by counsel: Imona-Russel, at para. 69.
[38] Sixth, it will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus’s duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona Russel, at para. 89.
[39] Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.”
September 20, 2024 – Costs After Case Settled: That’s a Thing?
“In the decision of Beardsley v. Horvath, 2022 ONSC 3430 (Ont. S.C.), Summers J. sets out a comprehensive analysis of the law regarding costs of settled cases. She notes the following in paras. 10-12:
(i) The caselaw has developed since the decision in Blank v. Micallef (2009), 75 R.F.L. (6th) 308, 2009 CanLII 60668 (Ont. S.C.), where the court held that costs of a settled case should not be awarded absent compelling circumstances.
(ii) Citing the cases of Scipione v. Scipione, 2015 ONSC 5982, 68 R.F.L. (7th) 66 (Ont. S.C.), Ball v. Ball, 2014 ONSC 5754, 52 R.F.L. (7th) 244 (Ont. S.C.), and A.C. v. G.K., 2015 ONCJ 399, 64 R.F.L. (7th) 496, Summers J. identifies some general principles that have emerged:
i. It is not uncommon for the court to receive last minute settlements which resolve all issues other than costs.
ii. Parties are always encouraged to settle; even at the last moments of a motion or trial – if signing minutes of settlement will jeopardize a litigant’s ability to seek costs, it will create a disincentive for settlement.
iii. There is a presumption that a successful party is entitled to costs pursuant to r. 24(10)); a party’s behaviour may be a relevant factor. If a court can assess success and reasonableness, costs may be awarded even when there has been a settlement. This is often the case where there is an extensive record with supporting documentation.
iv. If a party brings a motion asking to change almost everything, and, at the last minute, signs a consent which changes almost nothing, it may not be difficult for a judge to determine success.
v. “Success” is assessed by comparing the terms of the order made against the relief requested in the pleadings and, where applicable, against the terms of an offer to settle.
vi. When a case is determined by a settlement rather than a judicial decision, a court often does not have the information and evidence required to assess who was “successful” or the degree of that success. Sometimes the issues are so numerous and the results so different from either party’s offer that “success”cannot be measured. For example, in Page v. Desabrais, 2012 ONSC 6875 (Ont. S.C.) at para. 42, a multi-issue case, the court compared the offers of the parties throughout the proceeding and found it “simply impossible…to declare one party more successful than the other.”
vii. Sometimes, however, a court is able to assess what represents “success” after a settlement is reached. In Kearley v. Renfro, 2012 ONSC 5391 (Ont. S.C.), the only issue before the court on a motion was the residency of three children; the mother agreed on the day scheduled for the motion and settlement conference that the children would go into their father’s care immediately. The court found that the father was substantially successful, and awarded him costs.”
September 19, 2024 – The Hague Convention
“The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.
The test for when the Hague Convention applies is set out in Article 3. It provides that the removal or retention of a child is considered wrongful where it breaches the custodial rights of the left behind parent in the State where the child was habitually resident immediately before the wrongful removal or wrongful retention. Said custodial rights can include joint custodial rights, and can arise from law, a decision, or an agreement that has legal effect: Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 21. And Balev, at para. 28.”
September 18, 2024 – “Historical” Child Support as per Michel v. Graydon
“Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation from university. Under s. 152 of the (British Columbia’s) Family Law Act, a debt exists if the child qualified as a beneficiary at the time the support was due, irrespective of their status at the moment of the application. This reading not only accords with the text, legislative scheme, and purpose of s. 152, it enhances access to justice, reinforces that child support is the right of the child and the responsibility of the parents, encourages the payment of child support, acknowledges that there are many reasons why a parent may delay making an application, and recognizes how the underpayment of child support leads to hardship and contributes to the feminization of poverty. In short, allowing recipient parents to make claims for historical child support is in the best interests of children and promotes equality and access to justice for all.”
September 17, 2024 – Legal Aid & Costs
“The mother submitted that the father’s claim for costs is too high because he is on legal aid. The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar (2002), 2002 CanLII 53246 (ON SC), 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, 2008 CanLII 10047 (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882.”
September 16, 2024 – Security For Costs: Key Principles
“In Izyuk v. Bilousov, 2015 ONSC 3684, as adopted by the Divisional Court in Sabijan v Sabijan, 2021 ONSC 7605, Justice Pazaratz stated when considering whether to order security for costs, the court must turn its mind to the following:
a) The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.
b) If the onus is met, the court has discretion to grant or refuse an order for security.
c) If the court orders security, it has wide discretion as to the quantum and means of payment of the order.
d) The order must be “just” and be based on one or more of the factors listed in subrule 24(13).
(Citations omitted).
In this case, the Estate is situated outside of Ontario – in British Columbia. Accordingly, if there is a cost order levied against the Estate, it has no assets in this province from which Garcia could collect.
Given that the first prong of the test has been satisfied, I do not need to consider whether the Estate’s claims are a “waste of time or a nuisance” in order to proceed.
When deciding whether to exercise my discretion, I have considered the following principles:
a) Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders: Gauthier v. Gauthier, 2019 ONCA 722 at para. 8; Izyukat para. 37;
b) It can be inferred that an analysis under this section will include some consideration of the merits of the case, and whether it is a nuisance: Peters v. Peters et al, 2018 ONSC 7550 at paras. 38-39;
c) The purpose of security for costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred: Izyukat para. 36.
d) It is not the intention of any rule governing procedure in the court to deny access to the court by a person who has a genuineclaim and is unable to satisfy … an outstanding order for security for costs due to circumstances beyond his control: McGraw v. Samra, 2004 ONCJ 164 at para. 23, as adopted in Pigeault v. Pigeault, 2009 CarswellOnt 1558 at para. 19;
e) The Family Law Rules, read as a whole, yield the unmistakable intention of the Rules Committee that litigants not be permitted to use the court as a playground. This rule is but one remedy to stop a case in its tracks until a party veering outside of the rules brings him or herself into line with them. It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case. It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party: McGrawat para. 24, as adopted by LW v. AW, 2011 ONSC 7596 at para. 15;
f) Cases must be dealt with justly, which means ensuring that the procedure is fair to all parties, that it saves time and expense, that it is dealt with in a way that is appropriate to its importance and complexity and using the appropriate court resources: r. 2(2) and r. 2(3) of theFamily Law Rules.”
September 13, 2024 – Choice of School
“Broad J., in the recent decision of Dauber v. Dauber, 2021 ONSC 5489, summarized the law with respect to the guiding principles on the choice of school. In that decision, at paras. 14 and 15, he quoted from Piper v. Hare, 2021 ONSC 2139, which quoted Thomas v. Osika, 2018 ONSC 2712, as follows:
[15] The general principles guiding the court in deciding where a child shall attend school when the parties disagree were very usefully set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:
The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:
a. Sub-section 28(1)(b) of the Children’s Law Reform Actspecifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
b. It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache,2013 ONCJ 679 (Ont. C.J.));
c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);
e. The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);
f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new childcare providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
j. Third-party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
k. If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);
l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.));
m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).
In addition, Askalan v. Taleb, 2012 ONSC 4746, set out other factors, namely assessing any impact on the stability of the child and examining how many years the child has attended his or her current school.”
September 12, 2024 – Travelling Out of Country With Children
“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.
The status quo means “that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.
When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. See Saini v Tuli, 2021 ONSC 3413 at para 28.
The weighing process is necessarily fact specific. In Saini, the respondent sought to take the children in that case to California for over a month—she had to travel for work and did not believe the applicant could care for them while she was away. The court dismissed her motion because the travel was not essential for the children and the respondent could care for them.
In Yacoub v Yacoub, 2010 ONSC 4259, the respondent refused to consent to the children in that case traveling to Egypt with the applicant for a month. One of the concerns he raised was the risk they would not be returned to Canada—Justice McGee gave no effect to that submission because no supporting evidence was filed. Justice McGee held that the respondent’s other concerns (prepaid day camps and a pending piano exam) were outweighed by the “one time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel”. “Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family” (at para 21).
Mahadevan v Shankar, 2010 ONSC 5608, is like this case. There, the respondent wanted to take the 4-year-old child of the marriage to India for Diwali and to visit his family. The applicant refused consent because she feared the child would not be returned to Canada. In that case, the respondent had ties to Canada—he was a tenured professor at McMaster University and living with his new partner in Hamilton. Even then, Justice Pazaratz dismissed the motion because of the risk of abduction: “The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.”
September 11, 2024 – All About “Contempt of Court”
“Section 31(1) FLR prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt which in this case is the father. The standard of proof is the criminal standard of proof beyond a reasonable doubt: Moncur v Plante, 2021 ONCA 462 at para 10(1); Smith v Reynolds, 2018 ONSC 7706 at para 21.
To find civil contempt, the court must be satisfied that (1) the court order alleged to have been breached states clearly and unequivocally what should or should not be done; (2) that the person alleged to be in contempt had actual knowledge of the terms of the order; and (3) that the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras 32 to 35; Moncur v Plante at para 10(1). Unless the contempt motion satisfies all three criteria, the motion must be dismissed: Smith v Reynolds at para 22.
The contempt power is discretionary. Even after the three criteria are met, judges retain the discretion to decline to make a finding of contempt if to do so would work an injustice or if other alternatives exist: Moncur v Plante at para 10(2); Smith v Reynolds at para 23.
In exercising their discretion, judges must keep in mind that contempt is a remedy of last resort and contempt powers should be exercised sparingly: Carey v Laiken at paras 36-37. In family proceedings, judges should consider alternatives to finding contempt unless access problems or motions for enforcement have failed: Chong v Donnelly, 2019 ONCA 799 at paras 9-12; Hefkey v Hefkey, 2013 ONCA 44 at para 3; Moncur v Plante at para 10(2); Ruffolo v David, 2019 ONCA 385, 25 R.F.L. (8th) 144 at paras 18-19.
When the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Moncur v Plante at para 10(3); Ruffolo v David at para 19; Dunn v Shaw, 2021 ONSC 8286 at para 47.
Factors a court may consider in exercising its discretion before finding contempt include:
a. whether the contemnor took reasonable steps in good faith to comply with the order: Carey v Laiken at para 37; Smith v Reynoldsat para 23;
b. whether imposing contempt would work an injustice in the circumstances of the case: Carey v Laiken at para 37; Moncur v Plante at para 10(2);
c. the presence of exigent or extenuating circumstances: Newstead v Hacey, 2019 ONSC 5213 at paras 12 and 30;
d. whether alternatives exist such as finding a breach of the order and imposing other remedial options: Moncurat para 10(3) and 19; Dunn v Shaw at paras 33-34, 46; Jean v O’Callaghan, 2017 ONSC 4027 at paras 25 and 31; Hassan v Khalil, 2022 ONSC 3316 at paras 36 and 38; Ruffalo v David at para 19; and
e. whether the defiant conduct is severe or significant: Jackson v Jackson2016 ONSC 3466 at para 56.
If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Ironside v Roskam, 2018 ONSC 247 at para 49. Rule 31(5) FLRs sets out the various remedies available for contempt: r. 31(5); see also Stone v. Stone, 2019 ONSC 3214.
Finally, unlike criminal contempt where the court’s jurisdiction may be penal, a court’s jurisdiction in finding civil contempt is primarily remedial and aimed at encouraging compliance with the court order: Kopaniak v MacLellan, 2002 CanLII 44919 at para 28.”