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“I begin my analysis by confirming that child support is the right of the child, and no contract or agreement can operate to oust the jurisdiction of the court to order interim child support: Deiter v. Sampson, 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904, at para. 4.

When there is a dispute surrounding a separation agreement, the central issue to be determined is the validity of the agreement.  Only after that is determined can any secondary issues be addressed, including, for example, support: Chee-A-Tow v. Chee-A-Tow, 2021 ONSC 2080, at paras. 36-38.

However, in Salzmann v. Salzmann, 2004 CanLII 5009 (ON SC), [2004] O.J. No. 166, the court held (at para. 19) that interim spousal support may be granted, in spite of a waiver of spousal support, where there is a triable issue as to the enforceability of a contract.

On motions for interim spousal support, courts should apply the two-stage approach as set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2023] 1 S.C.R. 303, when assessing whether spousal support should be ordered despite it having been waived in an agreement.

As the court held in Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907, at para. 20:

In my view, the court, on an application for interim support, is required to conduct the Miglin analysis.  If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application.  This is particularly the case in circumstance where, as here, if the contract is upheld at trial, there are assets in the applicant’s name that can be used to compensate the respondent for any support that should not have been paid.  Interim orders are not final orders.  As noted by Granger J. in Cafik, they are meant to provide “a reasonably acceptable solution to a difficult problem until trial.””

            Huang v. Guo, 2023 ONSC 5717 (CanLII) at 25-29

“I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being. These negative consequences have been documented in countless court decisions in the past, including in many of those cited above.

I am of the view that most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA. While there is no doubt that individual and family counselling, if successful, will have a significantly positive impact on everyone’s health, their goal will usually be to address stress management strategies and inter-relationship management strategies. As such, such therapeutic interventions will not be “health-related” and, if they are, they will usually pose little or no risk of harm. The risk of harm, particularly to children, will often reside in NOT administering them. This being said, the question as to whether a specific therapeutic intervention is a treatment pursuant to section 2 of the HCCA needs to be determined on a case-by-case basis.

To the extent that a therapeutic intervention is considered to be a “treatment” to be provided by a “health practitioner” as defined by the HCCA, the parents’ consent will be required before a therapeutic order can be made. This is clearly set out in section 10 of the HCCA. An older or more mature child’s consent will also likely be required (for a detailed analysis of whether and when a child’s consent to treatment is necessary under the HCCA, see Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14 (Ont. C.J.) and L. (N.) v. M. (R.R.)).”

Leelaratna v. Leelaratna, 2018 ONSC 5983 at 65-67

“The applicant must show more than a mere display of common courtesy or hospitality. The facts of family life should be established, and the court will assess the relationships that have developed within the family unit. Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled”, in my opinion, denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention — or the brevity of the relationship in issue — is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced. Once a settled intention has been demonstrated, a subsequent change in that intention does not remove the obligation of support: Barlow v. Barlow; Dokuchie v. Dokuchie, and Riopelle v. Daniel. There is, indeed, no reason to suggest that the statutory intention is an ambulatory concept, the legal effects of which a respondent can cast aside at will to the detriment of the child. It seems unlikely that the legislature intended to place the financial well-being of a child in so vulnerable a position.

The view has been expressed that, while “settled intention” is to be inferred from the respondent’s conduct, the inference may be rebutted by evidence of actual intent: Bair v. Bair and Hines v. Davy. I agree that the respondent’s actual state of mind may form part of the totality of evidence. However, I share the view of Nasmith Prov. Ct. J. in Barlow v. Barlow, that the intention contemplated by the Act is intention objectively determined. I say this for three reasons. First, the legislative purpose of the definition is to enact a relationship between a respondent and a child that, as a matter of public policy, is considered appropriate to ground the support obligation. The right to support, if established, is the right of a child. Assume that a respondent’s intention, inferred from his conduct, is such as to satisfy the statutory test. As it is this intention, and this intention alone, that has been communicated to family members, and, indeed, to the outside world, it seems to me curiously inapposite to permit the respondent to escape the support obligation by asserting an actual intention at variance with the facts of family life knowingly created. So extravagant a construction does not seem consistent with the public policy base of the Act. Secondly, not only must there be a settled intention, but, further, the intention must be demonstrated; that is, translated into behaviour towards the child. I do not find it easy to understand how a party can “demonstrate” an actual intention, where this intention is different from the intention that is to be inferred from conduct. Finally, the statutory language breaks new ground, and there seems no reason to read into the Act unnecessary refinements and complexities. In my view, therefore, settled intention is to be objectively determined from a respondent’s conduct. I believe, also, that it is necessary to distinguish this intention from the motive or reason that prompted its formation. Motive, as a rule, is immaterial, save in so far as it may indicate intention.”

Spring v. Spring, 1987 CanLII 4379 (ON SC)

“In the final paragraph of her factum, the respondent “respectfully requests that this Honourable Court review her Offer to Settle this Motion for Leave to Appeal prior to awarding costs.”

It is not open to parties to disregard case management directions, even “respectfully”.  If a party wishes a variation in a case management direction, that variation must be sought prospectively.  Our case management system facilitates timely and efficient disposition of motions for leave to appeal, both for the parties and for the court.  It is not efficient for leave panels to reconstitute themselves a second time to consider costs issues.  This practice is in keeping with the practice as to costs of motions for leave to appeal in the Ontario Court of Appeal and the Supreme Court of Canada.

Where parties fail to provide their costs materials to the court as directed, the court will usually exercise its discretion to award no costs or to award a standard amount of costs that, in the opinion of the court, is appropriate for the matter at hand, generally $2,500 or $5,000, depending on the nature of the case.  It will be only in exceptional circumstances that the court will direct or permit further materials on costs after the decision has been rendered on the merits of the leave motion.”

            Rego v. Pearsall, 2021 ONSC 6624 (CanLII) at 4-6

“In Pintea v. Johns, 2017 SCC 23, at para. 4, the Supreme Court of Canada unanimously endorsed the Principles on Self-Represented Litigants and Accused Persons (“the Principles”) published by the Canadian Judicial Council in 2006. See: Canadian Judicial Council, archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf).

The Principles ensure that self-represented litigants are provided with fair and equal treatment in the courts.  They require:

• • • • Fair access to justice – This requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. (The Principles, page 2)
      • Some leniency for minor deficiencies – Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. (The Principles, page 4)
      • Judges have a responsibility to inquire – Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications before the self-represented person makes critical choices. (The Principles, page 7)
      • Rules should not be used to hinder – Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. (The Principles, page 7)

In Girao v. Cunningham, 2020 ONCA 260, at para. 149, the Court of Appeal for Ontario reminded us that the Principles, as endorsed and outlined in Pintea, need to be followed throughout the entire proceeding. They affect how the self-represented litigant should be treated in the courtroom and require that the court be flexible (while ensuring impartiality) in terms of procedures and the admissibility of evidence when one party is self-represented.

            Ramnarine v. Dindyal, 2022 ONSC 5713 (CanLII) at 47-49

“The following excerpts from Steps to Justice: Your Guide to Law in Ontario provides a useful overview of the Parenting Coordination process:

Parenting coordination is an alternative dispute resolution, also called family dispute resolution process. Parents can meet with a parenting coordinator for help with following the parts of their court order, family arbitration award, or separation agreement that are about parenting.

     …

A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders.

A parenting coordinator doesn’t decide major things like decision-making responsibility or parenting time. These used to be called custody and access. But a parenting coordinator can decide minor issues like:

• • • • • • • small changes to a parenting access plan such as vacations and holidays
            • scheduling activities and arranging for pick up and drop off to activities like ballet, hockey, or tutoring
            • children’s travel and passport arrangements
            • how your children’s clothing and school items are moved between your and your partner’s homes

A parenting coordinator helps you speak with each other to try and agree on your parenting issues. If you can’t agree, they can decide for you. Their decision is based on information they get from the parents, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.

The process is similar to mediation-arbitration. But the parenting coordinator cannot make major decisions. Their job is to help you follow the parts of your court order, family arbitration award, or separation agreement that are about parenting.

Parenting coordinators are trained to:

• • • • • • •    understand the needs of children
            •    help each parent discuss their parenting issues
            •    help parents to manage and keep children out of conflicts

…

Some of the reasons to use parenting coordination are:

• • • • • • • You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children’s needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
            • It can be faster than going to court once you have agreed on all of the process details and signed a parenting coordination agreement.
            • It can be cheaper than going to court to resolve minor parenting issues.

Community Legal Education Ontario, “What is Parenting Coordination?” (1 March, 2021),

online: https://stepstojustice.ca/questions/family-law/what-parenting-coordination/?gclid=.”

S-L.T. v. M.L., 2023 ONSC 5551 (CanLII) at 15

“Rule 2.1 of the Rules of Civil Procedure empowers a court, on its own initiative, or on motion by any party to a proceeding, to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

A proceeding includes an appeal. As this court noted in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8^th) 280, at para. 43, “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.”

…

To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson , at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.”

Bell v. Fishka, 2022 ONCA 683 (CanLII) at 1-2, 13

“To avoid trial or to narrow the issues, Ms. Burley did nothing.  She made no Offer to Settle, formally or informally.  Intransigence as such comes at a price.  As aptly stated by Wilson J. in Hussain v. Alam, 2013 ONSC 2250:

“Parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs.”

Burley v. Bradley, 2019 ONCJ 737 (CanLII) at 4

“The parties cannot confer jurisdiction on a court through consent: “The common law unanimously supports the general proposition that parties cannot empower a court with the authority to make a determination where it otherwise has no authority to do so or it its authority is limited by statute: Rothgiesser v. Rothgiesser [2000 CarswellOnt 50 (Ont. C.A.)], 2020 CanLII 1153 at para. 19. Jurisdiction is not optional: it “cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered”: N. (J.) v. Durham Regional Police Service, 2012 ONCA 428 (Ont. C.A.) at para. 25.”

          Simons v. Crow, 2020 ONSC 5940 (CanLII) at 37

“In Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at para. 16, Pazaratz J. reviewed the applicable legal principles to be considered in a motion of this kind:

The applicable legal principles include the following:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (Ont. S.C.J.).

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant. Kaphalakos v. Dayal, 2016 ONSC 3559 (Ont. Div. Ct.); Marchese v. Marchese, 2017 ONSC 6815 (Ont. S.C.J.); Jama v. Basdeo, 2020 ONSC 2922 (Ont. S.C.J.); Davis v. Davis, 1953 CanLII 148; Brienza v. Brienza, 2014 ONSC 6942 (Ont. S.C.J.).

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Jama v. Basdeo; Steele v. Doucet, 2020 ONSC 3386 (Ont. S.C.J.).

d.   The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v. Doucet.

e.   The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. Afolabi v. Fala, 2014 ONSC 1713 (Ont. S.C.J.).

f.   Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale. Silva v. Silva(1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.); Jama v. Basdeo; Steele v. Doucet.

g.   Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis(1953), 1953 CanLII 148 (ON CA), [1954] O.R. 23 (Ont. C.A.); Steele v. Doucet.

h.   In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined. Maskewycz v. Maskewycz(1973), 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (Ont. C.A.).

i.   The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC 703 (Ont. S.C.J.); Latcham v. Latcham(2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.); Dulku v. Dulku, 2016 CarswellOnt 16066 (Ont. S.C.J.).

j.   In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).

k.   More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later — in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.   The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte, 2019 ONSC 6954 (Ont. S.C.J.); Kaing v. Shaw, 2017 ONSC 3050 (Ont. S.C.J.). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated — even on a temporary basis — to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v. Darrigo, 2018 ONSC 1039 (Ont. Div. Ct.). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.

n.   Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).

o.   On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.   The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.   But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.   A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin1992 CanLII 7402 (ON CA), [1992 CarswellOnt 226 (Ont. C.A.)], 1992 CanLII 7402. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola[1990 CarswellOnt 574 (Ont. C.A.)], 1990 CanLII 6888. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).

s.   The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

            Culloden v. Card, 2022 ONSC 5573 (CanLII) at 13