“In my view, the trial judge did not err by failing to consider Ms. DiDonato’s admissions regarding her understanding of the insurance obligation in the Agreement. In resolving disputes arising from the interpretation of contracts, the objective is to protect the reasonable expectations of the parties, as set out in the language of their agreement. In the absence of ambiguity in the words of the contract, parole evidence of the subjective intention of the parties has no place in the interpretive exercise: see Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, at paras. 54-56.”
Category: Uncategorized
March 14 – Best Interests of The Child
“Section 39 of the Domestic Relations Ordinance provides that the rules of equity will apply in custody matters where they do not conflict with the provisions of the Ordinance. The application of equitable rules in this case would permit the Court to exercise the parens patriae jurisdiction and to treat the welfare of the child as the paramount consideration. I see no conflict in this respect with the Ordinance. Section 37, if it applied in this situation, would itself require a demonstration that the best interests of the child be served before it could be returned to the mother. The rules of equity, therefore, are to be applied in this determination.
This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.
In my view, which I find supported in modern authority in this country and in the United Kingdom: see Re Moores and Feldstein; Beson; Racine; and J. v. C., [1970] A.C. 668 (H.L.), and particularly where the governing statute preserves and dictates the application of the rules of equity, the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination.”
King v. Low, [1985] 1 SCR 87, 1985 CanLII 59 (SCC) at 26, 27 and 34
March 12 – Retroactive Spousal Support
“Counsel for Mr. Krane has not asked that spousal support be terminated earlier than the date of my order. By this, I understand that Mr. Krane has recognized his obligation to pay spousal support and Ms. Dryden’s entitlement to it, at least until the completion of the trial. Accordingly, what I am being asked to consider is whether spousal support should be changed retroactively and if so, whether such retroactivity should extend beyond the commencement of the Respondent’s motion. The Ontario Court of Appeal in Bremer v. Bremer [2005] O.J. Nov 608 summarized a number of factors to consider in making this determination:
i) the extent to which the claimant established past need and the payor’s ability to pay;
ii) the underlying basis for the support obligation;
iii) the requirement that there be a reason for awarding retroactive support;
iv) the impact of a retroactive award on the payor and in particular whether a
retroactive order will create an undue burden on the payor or effect a redistribution of capital;
v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;
vi) notice of an intention to seek support and negotiations to that end;
vii) delay in proceeding and any explanation for the delay; and
viii) the appropriateness of a retroactive order pre-dating the date on which the application issued.”
March 11 – Motion To Intervene In An Appeal
“Dubin C.J.O. is frequently cited as succinctly articulating the test for determining a motion to intervene in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164: “[T]he matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.”
March 7 – When Is An Agreement Enforceable?
“At common law, an agreement is binding if the parties consider that it contains all essential terms, even if the parties also agree that those terms will subsequently be recorded in a more formal document together with the usual terms ancillary to that type of agreement. However, an agreement is not final or binding if it is merely an agreement to later agree on essential provisions or to defer the binding nature of the agreement until the execution of the proposed subsequent formal contract. The proper approach was discussed in Bogue v. Bogue (1990), 1999 CanLII 3284 (ON CA), 46 O.R. (3d) 1, [1999] O.J. No. 4310 (C.A.), where, at para. 12, Rosenberg J.A. cites Robins J.A. in Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), [1991] O.J. No. 495, 79 D.L.R. (4th) 97 (C.A.), at pp. 103-104 D.L.R., as explaining the “true legal position”:
As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.
However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself. (Emphasis added; citations omitted)
As well, to be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content. As Rosenberg J.A. observed in Bogue, at para. 13:
While there was no express discussion about a release, the settlement of the action implied an obligation to furnish releases: Fieguth v. Acklands Ltd. (1989), 1989 CanLII 2744 (BC CA), 59 D.L.R. (4th) 114 (B.C.C.A.). At the end of those negotiations, the parties had bound themselves to the settlement. It only remained for the lawyers to reduce the terms to a formal document. This was not simply an agreement to agree.”
March 6 – Court’s Power On Motion For Sale of Home
“The order under appeal is an order for sale of the matrimonial home. Although the appellant refers in his factum to the order as an interlocutory order, because the order finally disposes of the issue of whether the matrimonial home should be sold, it is a final order and this court has jurisdiction to hear this appeal.
We are not aware of any statutory provision or precedent that would support the motion judge’s order delegating the court’s authority to approve the sale price at which the matrimonial home should be listed and to accept an offer on the appellant’s behalf. That order should not have been made. Similarly, absent the agreement of both parties, the motion judge’s orders granting rights of first refusal should not have been made. See Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.)”
March 5 – Costs Enforceable by FRO
“The trial judge, at para. 21, quoted above, referenced three decisions of this court: Drygala v. Pauli, 2003 CanLII 48241 (ON CA), [2003] O.J. No. 3, 167 O.A.C. 274; Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401, 215 O.A.C. 239; and Writer v. Peroff, [2006] O.J. No. 4567 (S.C.), aff’d [2006] O.J. No. 4061. In each of these cases, this court upheld a trial judge’s discretionary decision to order costs awarded in a matrimonial proceeding enforceable by the FRO as support. Indeed, in Drygala, at para. 16, the validity of an order making a costs award at trial enforceable in its entirety by the FRO was specifically affirmed.
However, the validity of an FRO enforcement order per se is not challenged in this case. There can be no tenable suggestion, and Gregory does not argue, that the courts lack jurisdiction to direct that costs awarded in a matrimonial proceeding be enforceable as support or maintenance by the FRO. The Act provides otherwise.
The critical question is whether the FRO enforcement mechanism can be triggered by characterizing the costs of a matrimonial proceeding as referable to lump sum spousal support where no claim for spousal support was advanced or adjudicated upon at trial. None of the cases cited by the trial judge supports that proposition. To the contrary, in each of Drygala, Wildman and Writer, child and/or spousal support, among other matters, was in issue at trial. And, in each of these cases, the costs of the underlying proceeding and of the appeal before this court were ordered enforceable by the FRO as support.
Nor do any of the appellate-level cases relied upon by Georgia stand for this proposition. For example, Sordi v. Sordi, 2010 ONSC 6236 (CanLII), aff’d 2011 ONCA 665 (CanLII), [2011] O.J. No. 4681, cited by Georgia, provides no authority for the approach employed by the trial judge. In Sordi, this court upheld a trial judge’s order that part of the costs awarded at a matrimonial trial should be enforceable by the FRO as support. However, the issues at trial included claims for child and spousal support, thus linking the costs award to support.
The relevant authorities, including those mentioned above, confirm that a trial judge’s allocation of costs as relating to support or maintenance for FRO enforcement purposes attracts considerable deference from a reviewing court. That said, in those authorities cited above where costs were designated enforceable by the FRO as “spousal support”, the costs were incurred in a proceeding in which spousal support was implicated.
I therefore conclude that the trial judge erred in this case by characterizing his costs award as lump sum spousal support for the purpose of invoking enforcement of the award by the FRO. For the reasons given, this characterization of Georgia’s costs award cannot stand.”
March 4 – Disposition Hearing In Child Protection Case
“In a case such as this one (not involving a native child or a potential custody order), the decision process on a disposition hearing is as follows:
1. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is society wardship or Crown wardship. (Section 57.)
2. If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70 (1) has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.
3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.
4. Determine whether the access would impair the child’s future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.
5. Determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child’s best interests. (Section 58.)”
Children’s Aid Society of Toronto v. T.L. and G.A., 2010 ONSC 1376 (CanLII) at 25
March 1 – Withdrawal From Parental Control
“In sum, the factors that must be considered in determining whether a child has involuntarily withdrawn from parental control include the following:
(a) The onus is on the child to establish the involuntariness of her withdrawal from parental control.
(b) The standard necessary to find that the withdrawal is involuntary looks to eviction or unbearable conditions. But in considering what is unbearable, the court must engage in a contextual analysis of the factors that led to the child’s withdrawal. A broad matrix of factors regarding both parent and child must be considered.
(c) The analysis must look to what is unbearable to the particular child who has withdrawn. What is unbearable for one child may not be for the other. A child and parent’s difficulty coping with each other may be sufficient, depending on the control being exerted and the condition of the child. Similarly, an intolerable breakdown in their communication may also suffice.
(d) Implicit in the analysis is the notion that the control being withdrawn from must be reasonable for the withdrawal to be voluntary. A child’s refusal to follow reasonable parenting limits for purely subjective reasons will likely make the withdrawal voluntary.
(e) The child’s decision must be complete. It must be to, in the words of Clements J. in Haskell v. Letourneau, to “… cut the family bonds and strike out on a life of his own… [to assume] the responsibility of maintaining or supporting himself… to cut himself away from the family unit.”
(f) The complete withdrawal must be from both parents.
(g) In considering whether the withdrawal is voluntary, the court can look to behaviour both before and after the withdrawal.
(h) One relevant aspect of behaviour after the withdrawal is whether the parent has attempted to repair his or her relationship with the child.
(i) Despite the onus placed on the child, the court must be cautious before finding on the facts before it that a child has clearly decided to voluntarily withdraw from reasonable parental control.”
February 27 – Canada Pension Plan Child Benefit
“The appellant argues that his $201 monthly child support obligation should be reduced by the $200 CPP child benefit that arises out of the appellant’s CPP disability.
For several reasons, I agree with the courts that have considered and rejected the argument that the amount of the CPP child benefit should be credited against the child support otherwise owing. See Wadden v. Wadden, 2000 BCSC 960 (CanLII), [2000] B.C.J. No. 1287 (S.C.); Huey v. Huey (1991), 39 R.F.L. (3d) 14 (Ont. Gen. Div.); Williams v. Williams (1995), 18 R.F.L. (4th) 129 (Ont. Gen. Div.); Corkum v. Corkum (1997), 1998 CanLII 2691 (NS SC), 36 R.F.L. (4th) 367 (N.S.S.C.); Griffiths v. Griffiths (1999), 1999 ABQB 193 (CanLII), 45 R.F.L. (4th) 353 (Alta. Q.B.); Vickers v. Vickers (2001), 2001 NSCA 96 (CanLII), 201 D.L.R. (4th) 65 (N.S.C.A.); Peterson v. Horan (2006), 2006 SKCA 61 (CanLII), 279 Sask. R. 94 (C.A.).
First, if Parliament had intended to provide an offset of the child benefit against support, it would have provided for that result either in the Federal Child Support Guidelines, S.O.R./97-175 (the Guidelines), or in the Canada Pension Plan, R.S.C. 1985, c. C-8 (the Act). It did not do so.
Second, the benefit is not income of the appellant in the sense that he redirects it to his son simply as a matter of convenience. Instead, the Act treats the benefit as that of the child, not that of the contributor. Paragraph 44(1)(e) of the Act specifically provides that “a disabled contributor’s child benefit shall be paid to each child of a disabled contributor…”. As well, an application for the benefit is not made by the parent, but by the parent “on behalf of” the child. This is confirmed by s. 75, which provides that the benefit is payable directly to the child, unless the child is a minor, in which case the benefit is paid to the custodial parent. The appellant has no entitlement to the benefit, he has no control over its payment, it is not taxable in his hands, and it is not included in his income for the purpose of calculating his child support obligation. Accordingly, it should not be used to reduce the appellant’s obligation to pay support for his child.
Third, had Parliament intended the benefit to satisfy all or part of a contributor’s child support obligation, it could have crafted a scheme that provided an increased benefit for a contributor with a dependent child, rather than a separate child benefit. Had it done so, the quantum of child support would have been calculated on the appellant’s gross income. This, however, was not the scheme devised by Parliament. See Vickers, supra, at para. 12.
Fourth, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) mandates that child support orders must be made in accordance with the Guidelines. Support is calculated on the taxpayer’s taxable income, which does not include the child benefit. The Guidelines do not provide for a reduction of Table support by the amount of the CPP child benefit and do not factor a minor child’s means into consideration, except in certain specific circumstances, none of which was raised in this proceeding. The trial judge knew that Andrew was approaching the age of majority when his means could become relevant. However, when considered in the context of Andrew’s needs, and the financial circumstances of his parents, his receipt of the CPP child benefit would not operate to reduce the appellant’s child support obligation.”