“Our case law is clear that without a clear error of law or misperception of the facts, there is no basis for this court to interfere with a judge’s decision whether to grant an adjournment: see e.g. Khimji v. Danani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A. dissenting, but not on this point). This is especially the case in family law matters where motion and trial judges’ case management role is so crucial to the process.”
Category: Uncategorized
June 4, 2024 – Retroactive Downward Variation of Support
“Like any applicant seeking a retroactive variation under s. 17 of the Divorce Act, a payor seeking a downward retroactive change must first show a past change in circumstances, as required under s. 17(4). Section 14 of the Guidelines lists situations constituting a change in circumstances for the purpose of s. 17(4) of the Divorce Act, including the coming into force of the Guidelines (s. 14(c)). A change in circumstances could also include a change that, if known at the time, would probably have resulted in different terms, such as a drop in income (Guidelines, s. 14(a); Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688; Gray, at para. 39).
The onus is on the party seeking a retroactive decrease to show a change in circumstances (Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 26; Templeton, at para. 33). In some cases that may be relatively straightforward: for example, establishing that the children are no longer legally entitled to support because they are no longer children of the marriage.
Most commonly, the retroactive variation claim will be based on a material change in income. To meet the threshold, a decrease in income must be significant and have some degree of continuity, and it must be real and not one of choice (Willick, at pp. 687-88; Earle v. Earle, 1999 CanLII 6914 (B.C.S.C.), at para. 27; MacCarthy v. MacCarthy, 2015 BCCA 496, 380 B.C.A.C. 102, at para. 58, citing Earle; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 33; Gray, at para. 39; Brown v. Brown, 2010 NBCA 5, 353 N.B.R. (2d) 323 (“Brown”), at para. 2; Templeton, at para. 35). Trivial or short-lived changes are insufficient to justify a variation (Templeton, at para. 35). In this way, the threshold inquiry preserves some sense of certainty and predictability for the parties and the child, while allowing some flexibility in response to changes in the payor’s income.
The payor must have disclosed sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. A decision to retroactively decrease support can only be made based on “reliable, accurate and complete information” (Earle, at para. 28). The payor cannot ask the court to make findings on income that are contrary to the recipient’s interests “while at the same time shielding information that is relevant to the determination of their income behind a protective wall” (Templeton, at para. 67; see also Tougher v. Tougher, 1999 ABQB 552, at paras. 14-15 (CanLII); Terry, at para. 9).
Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).”
June 3, 2024 – Biological Ties and Best Interests
“It is not an error, in my view, for a court to consider a biological tie in itself in evaluating a child’s best interests under this act, even though courts should be reluctant to superimpose the factor onto a statute when a legislature has omitted it, since courts and legislatures have progressively moved away from biological ties. Nevertheless, courts have considerable discretion in identifying and weighing the factors that are relevant in a given case (Van de Perre, at paras. 11-13, citing Hickey, at paras. 10 and 12). As a result, a court may conclude the evidence supports assigning weight to a biological tie if it can make the link to a child’s best interests. That said, a biological tie in itself should generally carry minimal weight for several reasons.
First, too great an emphasis on biological ties may lead some decision makers to give effect to the parent’s claims over the child’s best interests. Parental preferences should not usurp the focus on the child’s interests. As Wilson J. wrote in Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at p. 185: “. . . a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations.”
Second, King v. Low concluded that a child’s bond is a consideration that should prevail over the “empty formula” of a biological tie (para. 104). King v. Low’s statement that a biological parent’s claims should not be “lightly” set aside must be read in the adoption context in which it arose and alongside the Court’s ultimate emphasis on the child’s bond (para. 101). King v. Low implies that biological parents’ claims must not be “lightly” set aside only because a biological tie is a presumed proxy for the parent with whom a child has the closest emotional or psychological bond. A child will frequently have a strong attachment to a biological parent as they are generally among the persons most involved in the child’s care. Yet this does not confer significant weight to a biological tie in itself. It is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself.
There is “no magic to the parental tie” (Young, at p. 38, per L’Heureux‑Dubé J., dissenting in the result). The very need for child protection legislation underscores that a biological connection is no guarantee against harm to a child. On the other hand, a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs, as this case and King v. Low illustrate. Thus, King v. Low does not give significant weight to a biological tie in itself, but treats it as a presumed proxy for a child’s strongest bond.
Since biological ties are a presumed proxy for a bond, any advantages that favour the biological parent will usually be captured and subsumed within the broader inquiry into a child’s best interests. In particular, if the biological parent is closer to the child, and better able to meet the child’s needs, this will be reflected in a wider range of relevant factors, like the child’s relationship to the parent, the views and preferences of the child, and the ability to meet the child’s needs, including the child’s safety, security, and well-being (Wilton, Joseph and Train, at § 6:1). To the extent a parent relies on biology for considerations related to the child’s culture, race or heritage, it may be addressed within those factors.
Third, the benefit of a biological tie itself may be intangible and difficult to articulate (British Columbia Birth Registration No. 99-00733, Re, 2000 BCCA 109, 73 B.C.L.R. (3d) 22, at para. 117). This makes it difficult to prioritize it over other best interests factors that are more concrete. For example, in this case, the decisive factor was which parent was more likely to foster W.D.’s relationship with the other parent. This factor clearly benefits the child: it ensures the child is placed with the parent who will best promote the child’s emotional and psychological relationship with the other parent. In comparison, the benefit of the father’s biological tie itself is harder to identify. Further, any benefit from a connection to a biological parent, such as a “sense of security” in knowing one’s “roots”, as the majority of the Court of Appeal put it, may be achieved through access and parenting time rather than custody (para. 111).
As well, the importance of biological ties may diminish as children are increasingly raised in families where those ties do not define a child’s family relationships. Family institutions have “undergone a profound evolution” and changing social conditions, as noted, have diminished the significance of biological ties (Young, at p. 43; King v. Low, at p. 97). Change and evolution continues today. Contemporary shifts in parenting and family composition may undermine the relevance of biological ties.
Finally, as in this case, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another. This Court has moved away from stereotyped and formulaic solutions like the “tender years” doctrine (Young, at p. 43; A.C., at para. 92). Unsupported generalizations about, as in this case, the caregiving capacity of a biological father versus a grandmother, or vice versa, are similarly inappropriate. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. It fails to take into account how often other family members assume care for children whose biological parents cannot act as caregivers as a result of addictions, mental health issues, criminal behavior, or other challenges. It also overlooks that a custody dispute that is superficially between two biological parents may frequently draw in several family members, as a parent’s extended family may also assist in care and feel invested in seeing a custody claim succeed. Here, not only did the grandmother step up to assist her daughter to care for W.D., but the father’s parents also help him with W.D.
For these reasons, I disagree with the majority of the Court of Appeal that biology must be a tie-breaker when two parties are otherwise equal under this legislation. A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative. While biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child’s best interests.”
May 31, 2024 – Appealing Costs Orders
“The respondent seeks leave to cross-appeal costs.
I will address the respondent’s submissions, but first I provide background on the law with respect to costs in family law as summarized by this court in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65 at paras. 67-69. The principles are:
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- Costs awards are “quintessentially discretionary”;
- A costs award should only be set aside on appeal if the court below “has made an error in principle or if the costs award is plainly wrong”;
- There is “significant deference” to costs awards in relation to spousal support orders. This approach promotes finality in family law litigation.
- A material error, a serious misapprehension of the evidence or an error in law would be required for this court to intervene.
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The Family Law Rules, O. Reg. 114/99 emphasize these principles in r. 24(12), which contains a list of factors the court shall consider and balance subject to its overriding discretion. The court may exercise its discretion to award costs. Rule 24(1) creates a presumption that a successful party will be granted costs. At the same time, r. 24(4) gives the court the discretion to deprive a successful party of “all or part of” his or her costs if the party behaved unreasonably. Likewise, r. 24(6) gives courts discretion to apportion costs when success is divided. This is in contrast to r. 24(8), which requires the court to order full recovery of costs upon making a finding of bad faith.
The intention of the rules is clear: absent bad faith, the ultimate decision rests with the trial judge.”
May 30, 2024 – Modest Means: Not a Shield Against Costs
“Modest means is not a basis on which to deny an award of costs. It has long been held that a party’s limited financial circumstances cannot be used as a shield against any liability for costs, particularly when the unsuccessful party has acted unreasonably, see Snih v. Snih, 2007 Canlii 20774 (Ont. SCJ pars. 7-13).
In other words, parties cannot expect to be immune from an Order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs Orders. This would be contrary to the philosophy and requirements of the Rules, see: Culp v. Culp, 2019 ONSC 7051 (SCJ) and Mark v. Bhangari, 2010 ONSC 4638 (SCJ). As I wrote in Mohr v. Sweeney 2016 ONSC 3238, citing Balaban v. Balaban, 2007 CanLII 7990 (ON SC), those who can least afford to litigate should be the most motivated to seriously pursue settlement, and to avoid unnecessary proceedings.”
May 29, 2024 – Valuing Pensions
“The process for valuating pensions is set forth in s. 67.2 of the [Pension Benefits Act] PBA, the relevant provisions of which provide as follows:
67.2 (1) The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse. 2010, c. 9, s. 44 (1).
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(5) The imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be, is that portion of the preliminary value that is attributed by the administrator, in accordance with the regulations,
(a) to the period beginning with the date of the spouses’ marriage and ending on their family law valuation date, for the purposes of an order under Part I (Family Property) of the Family Law Act; or
(b) to the period beginning with the date determined in accordance with the regulations and ending on the spouses’ family law valuation date, for the purposes of a family arbitration award or domestic contract. 2009, c. 11, s. 49.
The other critical legislative provisions for the purposes of the valuation of pensions in the family law context are subsections 10.1(1) and 10.1(2) of the FLA:
10.1(1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of that Act. 2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1).
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(2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of the Pension Benefits Act with necessary modifications. 2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1).
The use of the phrase “with necessary modifications” in s.10.1(2) of the FLA indicates a legislative intent that the substance of s. 67.2 of the PBA be applied, while recognizing that some details may require modification. As the Supreme Court of Canada has recently observed, the words “with necessary modifications” are a contemporary reformulation of the Latin phrase mutatis mutandis: see R. v. Penunsi, 2019 SCC 39, 378 C.C.C. (3d) 37, at para. 49. They mean that the rules to be applied are read with necessary changes in points of detail, while the matter remains the same: Penunsi, at para. 50.
In a recent decision considering s. 10.1(2) of the FLA, Raikes J. held that any departure from the PBA methodology must be justified as necessary by the party seeking that departure: Kelly v. Kelly, 2017 ONSC 7609, at paras. 161-162. I agree with and adopt that statement. This approach is consistent with the language of necessary modification. If one of the parties can show that, because the plan is not regulated under the PBA, a modification to the approach is necessary, departure will be warranted. Otherwise, the default position is that the PBA approach is to be used.
This approach is also consistent with the legislative intent in reforming pension valuation on marital breakdown. The purpose of the new legislation was to create a uniform approach that would create certainty and avoid costly litigation over pension valuations: see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 92 (24 November 2008) at 4156 (Hon. Christopher Bentley); and Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 111 (19 February 2009) at 4891 (Hon. Christopher Bentley).
In summary, the legislature has signalled a clear intention in s. 10.1(2) of the FLA that a non-Ontario pension be valuated wherever possible in the same manner as an Ontario regulated pension. This means that the valuation formula in the PBA regulation Family Law Matters O. Reg. 287/11 should be applied to a non-Ontario pension with modifications only where necessary. In addition, a purposive interpretation of s. 10.1(2) of the FLA requires that, to the extent that other Ontario statutory provisions or regulatory requirements impact the valuation of a pension for family law purposes, they too should be applied to the valuation of a non-Ontario pension.
In other words, a pension administrator should, to the extent possible, valuate a non-Ontario pension as if it were an Ontario pension. This is consistent with the purpose of the valuation exercise, which is to obtain a fair, predictable, and consistent division of net family property. Thus, it is important that provincial and federal pensions be valuated in the same manner, to the extent reasonably possible.”
May 28, 2024 – Forum Non Conveniens
“Forum non conveniens is a separate determination to be made once jurisdiction simpliciter is established. The decision to raise forum non conveniens rests with the parties, not with the court seized of the claim. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 101-3.”
May 27, 2024 – Tender Years Doctrine
“There is no “tender years doctrine” precluding very young children being parented by their fathers: Young v. Young [cite]. Yet, many of the mother’s claims suggest that the father is inherently unable to parent a young child particularly as the child is being breastfed.
As set out in Ferreira v Ferreira, 2015 ONSC 3602:
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- The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.
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- A child’s relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children’s physical or mental well-being: see Pastway v. Pastway(1999), 49 R.F.L. (4th) 375(Ont.Ct. (Gen. Div.))”
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May 24, 2024 – Doctor’s Notes
“I have several difficulties with the doctor’s notes. First, they were attached as exhibits to the respondent’s affidavits. On their face they are hearsay. They are opinion evidence from what would be a participating expert but who has not been qualified as such. Attaching the notes would put him beyond cross-examination.
The law on this point is best summarized by Nakonechny, J. in Lucreziano v. Lucreziano, 2021 ONSC 4106 (CanLII), at para. 49:
[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.”
May 23, 2024 – Disclosure Orders & Proportionality
“The obligation to make full and frank financial disclosure in a family law case is an immediate and ongoing obligation. See: Colucci v. Colucci, 2021 SCC 24, at paragraph 42.
At paragraph 44, in Aiello v. Aiello, 2023 ONSC 2176, Justice M.D. Faieta wrote about the importance of disclosure orders being proportional as follows:
Any demands for financial disclosure beyond the specific items that are required to be produced under the Child Support Guidelines and the Family Law Rules must be relevant and proportional to the issues in the case: Mawhinney v. Ferreira, 2023 ONSC 1357, at para. 12. In weighing whether a request for disclosure is proportional, consideration should be given to the burden that the request places on the disclosing party in terms of time and expense of producing the requested disclosure: Kovachis v. Kovachis, 2013 ONCA 663, at para. 34. Also see Boyd v. Fields, [2006] O.J. No. 5762, at paras. 11-14.”