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“Miglin articulates a two-stage inquiry in the face of an application for spousal support that is inconsistent with a pre-existing agreement between the parties. The first stage looks at the time the agreement was formed. The second considers all the circumstances at the time of the application.

At the first stage, the court must look at two things. First, it must consider “the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it”: Miglin, at para. 80. Circumstances less than “unconscionability” may be relevant, but a court should not presume an imbalance of power.

Second, once satisfied that there is no reason to discount an agreement due to conditions under which it was negotiated, the court must then inquire whether the substance of the agreement substantially complies with the overall objectives of the DA. Here, the court must look at the agreement in its totality, bearing in mind that all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin, at para. 84. If the court is satisfied that the circumstances under which the agreement was negotiated were satisfactory and the agreement was in substantial compliance with the general objectives of the DA at the time of creation, the court should defer to the parties’ wishes and give the agreement great weight: Miglin, at para. 87.

The second stage of the inquiry focuses on the circumstances surrounding the agreement at the time of the application for spousal support. If, and only if, the circumstances at the time of the application represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the DA, the court may be persuaded to give the agreement little weight: Miglin, at para. 91.”

          Faiello v. Faiello, 2019 ONCA 710 (CanLII) at 44-47

“A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child’s best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child’s other parent.”

            S. v. A., 2021 ONSC 5976 (CanLII) at 24

“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent 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; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

Shokoufimogiman v. Bozorgi, 2022 ONSC 5057 (CanLII) at 32

“Section 113(8) of the CYFSA states that during a status review, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

There are two lines of authorities about the threshold to vary a supervision order in a status review pending its final resolution, one line of cases being more stringent than the other.  These lines of authorities consider the amount of threshold change that must be demonstrated, in the context of the statutory framework and policy considerations.  In so doing, courts also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.

At ¶ 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Sager J. summarized the two lines of authorities as follows:

[14]      One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.

[15]       The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See:  Kawartha-Haliburton Children’s Aid Society v. A.R. and D.F., 2020 ONSC 2738 (CanLII); Catholic Children’s Aid Society of Toronto v. K.G., 2020 ONCJ 208 (CanLII); CAS Algoma v. S.S., 2010 ONCJ 332 (CanLII); and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746 (CanLII).

[16]       The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See:  The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 (CanLII) and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435 (CanLII).

[17]           At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”

At ¶ 19-34, Sager J. determined that the more flexible approach should apply.  She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation.  In the end at ¶ 34 she wrote:

In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change.  However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time.  Hilliard J. referred to the test to change parenting time as being “significantly lower”.”

Dnaagdawenmag Binnoojiiyag Child & Family Services and S.S. and M.S., 2023 ONSC 5011 (CanLII) at 23-27

“Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave is required where the appeal is only as to a discretionary costs order. However, when “the disposition on appeal changes the decision under appeal, leave to appeal from a costs order is not necessary”: Tadayon v. Mohtashami, 2015 ONCA 777, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82.”

          Climans v. Latner, 2020 ONCA 554 (CanLII) at 83

“Viva voce evidence, in conjunction with whatever relevant documentary evidence exists, may ground a claim for an exclusion.  For example, even though Goodyer v. Goodyer is a pro rata case, at para 83 Perkins J. said, “the individual assets in the investment account need not be traced with any degree of detail, so long as the history and continuity of the account as a whole are proved.”   Penny J. adopted a similar approach to the evidence in Ludmer v. Ludmer, a “common sense” case.  As did Simmons, J.A. in obiter in Townshend v. Townshend.”

          Farmer v. Farmer, 2021 ONSC 5913 (CanLII) at 84

“Given that the applicant is also claiming temporary spousal support, an alternate approach of reaching a fair and just determination of quantum of spousal support (since entitlement is conceded) is looking at the parties’ “means and needs”.

In Vermeire v. Bates, 2022 ONSC 1278 at para. 8 and 9, Fowler Byrne J. summarized the law in respect of interim spousal support as follows:

[8]      My authority to award interim spousal support order is found at s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The factors and objectives that I must consider under ss. 15.2(4) and 15.2(6) do not differentiate between interim and permanent spousal support orders. That being said, in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 24, Justice Chappel sets out the general principles that apply when dealing with motions for temporary spousal support (citations omitted):

1.                  The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum.  The merits of the case in its entirety are to be dealt with at trial.

2.                  In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.

3.                  The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.  That task is for the trial judge.

4.                  The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.

5.                  Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self sufficiency is of less importance.

In Driscoll v. Driscoll, 2009 CanLII 66373 (Ont. S.C.), Justice Lemon adopted the principles for temporary spousal support as set out in the British Columbia case of Robles v. Kohn, 2009 BCSC 1163:

a)      On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;

b)       An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;

c)      On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;

d)       The courts should not unduly emphasize any one of the statutory considerations above others;

e)      On interim applications the need to achieve economic self-sufficiency is often of less significance;

f)       Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

g)       Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

h)       Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

            Hohmeier v. Caputo, 2022 ONSC 4925 (CanLII) at 39-40

“Section 2(1) of the Divorce Act defines “relocation” as,

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order.

Section 16.9(1) of the Divorce Act provides that a person with parenting time or decision-making responsibility respecting a child of the marriage who intends to effect a relocation must provide at least 60 days’ prior notice of that intention, in a prescribed form, to anyone else who has parenting time, decision-making responsibility or contact under a contact order.

Pursuant to s. 16.91(1), a person who has given notice pursuant to s. 16.9 and intends to relocate a child is permitted to do so if: a) the court authorizes the relocation; or b) a recipient of the s. 16.9 notice does not object in the prescribed manner within 30 days of receipt of that notice and there is no order prohibiting the relocation.

In determining whether or not a relocation should be authorized, “the crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being”, which is a highly fact-specific and discretionary inquiry (see: Barendregt v Grebliunas, 2022 SCC 22, at para. 152).  The court must consider the best interests of the particular child in the particular circumstances of the case (see: Barendregt, at para. 123).

In determining the best interests of the child in relocation cases, the court must consider all factors related to the child’s circumstances, including, without limitation:

a.    the child’s views and preferences;

b.    the history of caregiving;

c.    any incidents of family violence;

d.    the reasons for the relocation;

e.    the impact of the relocation on the child;

f.    the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;

g.   the existence of a court order, arbitral award or agreement that specifies the geographic area in which the child is to reside;

h.   the reasonableness of the relocating party’s proposal to vary parenting time, decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and

i.    whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance,

(see: Barendregt, at paras.153-154).

The court is not to consider how the outcome of the relocation application would affect the parties’ relocation plans – e.g., whether the relocating party would relocate without the child or not relocate at all (see: Barendregt, at paras. 140 and 154).”

            Shearhart v. Shearhart, 2023 ONSC 4931 (CanLII) at 11-16

“General principles established by courts approaching and applying those legislated provisions include the following:

a.  It is not true to say that costs in family proceedings generally should approach full recovery.  Nor are judges deciding matters governed by the Family Law Rules constrained by the “partial indemnity” and “substantial indemnity” scales of costs frequently applied in relation to litigation governed by the Rules of Civil Procedure.  To the contrary, no cost scales are mentioned in the Family Law Rules, and those rules provide that a judge may increase or decrease what might otherwise be an appropriate quantum of costs, depending on factors such as the conduct of the parties and the presence or absence of offers to settle.  The Family Law Rules demand flexibility in examining the list of factors set forth in Rule 24(11), without any assumptions about categories of costs and the court fixing costs at some figure between a nominal amount and full recovery, bearing in mind that modern cost rules are designed to foster three fundamental purposes: partial indemnification of successful litigants for the cost of litigation; encouraging settlements; and discouraging and sanctioning inappropriate behaviour by litigants.  Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs to be awarded.  At the end of the day, cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party or parties. See: Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.), at paragraph 4; M.(C.A.) v. M.(D.), 2003 CanLII 64334 (ON SC), [2003] O.J. No. 3060 (C.A.), at paragraph 42 Serra v. Serra, 2009 ONCA 395 (CanLII), [2009] O.J. No. 1905 (C.A.), at paragraphs 8 and 12; Costa v. Perkins, [2012] O.J. No. 2400 (Div.Ct.), at paragraph 50; Beaver v. Hill, 2018 ONCA 840, at paragraphs 8-13; and Brennan v. Fournie, 2022 ONSC 1491, at paragraphs 12-13.

b.  It is an error to refuse to award costs to a successful party where the successful party has not behaved unreasonably during the case or success was not divided. See Wylie v. Leclair, 2003 CanLII 49737 (ON CA), [2003] O.J. No. 1938 (C.A.), at paragraph 24.

c.  “Divided success” does not necessarily mean “equal success”, and “some success” may not be enough to have an impact on the appropriate cost determination.  Most family law cases involve multiple issues, and not all issues are equally important, equally time-consuming or equally expensive to determine.  Moreover, while comparative success can be assessed in relation to specific issues, it also can be assessed globally in relation to the whole of a case.  See Scipione v. Del Sordo, 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 (S.C.J.), at paragraph 68.

d.  Consideration of settlement offers is relevant not only to possible determination of relative success, but also to an assessment of whether parties have behaved reasonably.  In particular, in looking at reasonableness and unreasonableness, it is necessary to consider any offers to settle which either party has or has not made.  It normally is considered unreasonable behaviour for a party not to make a settlement offer.  See Fisher v. Fisher, [2015] O.J. No. 1532 (S.C.J.), at paragraph 22; and Palod v. MacDonald, [2018] O.J. No. 4180 (S.C.J.), at paragraph 23.

e.  In considering party behaviour in the determination of cost awards, courts also have emphasized, (as they have in the context of substantive determinations), the fundamental importance of parties making honest and complete financial disclosure.  Where a party fails to comply with his or her “cornerstone” obligations in that regard, effectively forcing an opposing party to embark on litigation to obtain such disclosure, such inadequate financial disclosure usually entails cost sanctions, (e.g., awards sometimes approaching full recovery, even in cases falling short of “bad faith”), as an appropriate means of discouraging such behaviour.  See, for example: Rondelet v. Neff, 2011 ONCJ 407 (CanLII), [2011] O.J. No. 3911 (O.C.J.), at paragraph 21; and Benzeroul v. Issa, [2017] O.J. No. 5385 (S.C.J.), at paragraph 32(d).

f.   Although a comparison of the time devoted to a matter by each party forms part of the inquiry into reasonableness of the amount claimed, it should be remembered that opposing counsel are not expected or required to spend the same amount of time on a case, that the determination of costs is not a purely mathematical exercise, and that the overriding principle is reasonableness.  See Fielding v. Fielding, 2014 ONSC 100 (CanLII), [2014] O.J. No. 38 (S.C.J.), at paragraphs 24-25, affirmed 2015 ONCA 901.

g.  The financial means of the unsuccessful party may be a relevant matter for consideration in the exercise of a court’s discretion regarding costs in the family law context.  In particular, in certain cases it may be appropriate, in the exercise of the court’s overriding discretion, to reduce the quantum of costs that a party will have to pay because of their financial condition.  However, the principle does not apply in reverse.  In particular, there is no principle relating to costs that requires wealthier individuals to pay more for costs for the same step in a proceeding than less wealthy ones. See M.(C.A.) v. M.(D.), supra, at paragraph 43; and Beaver v. Hill, supra, at paragraph 18.”

Baker v. Baker, 2023 ONSC 4860 (CanLII) at 10

“Section 56(4) of the FLA sets out when a domestic contract can be set aside.  The court may set aside a domestic contract or a provision in it if a party failed to disclose to the other, significant assets, debts or other liabilities existing when the domestic contract was made; if a party did not understand the nature or consequences of the contract; or otherwise in accordance with the law of contract.

Courts have discretion in setting aside Minutes of Settlement. The most common factors for consideration are whether there had been a concealment of assets or material misrepresentation; whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosures; whether the petitioning party moved expeditiously to have the agreement set aside; whether the petitioning party received substantial benefits under the agreement; whether the other party had fulfilled his or her obligations under the agreement; and whether the non-disclosure was a material inducement to entering the agreement. In other words, how important was the non-disclosed information to the negotiation? See Dochuk v. Dochuk (1999), 1999 CanLII 14971 (ON SC), 44 R.F.L. (4^th) 97 (Ont. Div. Ct.), at para. 17.

In determining whether a contract should be set aside, the court must first consider whether the party seeking such can demonstrate one or more of the circumstances outlined in s. 56(4) and if so, whether it is appropriate to set aside the agreement: see LeVan v. LeVan, 2008 ONCA 388, [2015] O.J. No. 4883. In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, the Supreme Court of Canada held that courts should respect private agreements reached between spouses.

The burden is on the party seeking to set aside the agreement, in this case the mother, to bring herself within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement: see LeVan; see also Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760.”

            Armstrong v. Armstrong, 2021 ONSC 5774 (CanLII) at 10-13