Category: Uncategorized

“Subsection 2(1)(b) of the Divorce Act states that a “child of the marriage” means a child of two spouses or former spouses who, at the material time,

is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In Licata v. Shure, 2022 ONCA 270, 2022 CarswellOnt 4209, at para. 33 (“Licata”), the Court of Appeal stated:

When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted.]

In Licata, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden, 1993 CanLII 2570 (BC SC), 1993 CarswellBC 619, at para. 15:

The Farden factors are:

(1)     whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2)     whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3)    the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)     the ability of the child to contribute to his own support through part-time employment;

(5)     the age of the child;

(6)   the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)     what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)     at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.”

            Punit v. Punit, 2022 ONSC 4641 (CanLII) at 44-47

“Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

…

The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.”

            Scott v. Boutilier, 2023 ONSC 4578 (CanLII) at 1-2, 10

“The existence of an interim Order for exclusive possession of the matrimonial home presents a triable issue which may weigh against its sale pending trial (Martin v. Martin, 1992 CanLII 7402 (ON CA), para. 26; Brar v. Brar, 2020 ONSC 5637, para. 67). As noted by McGee J. in Goldman v. Kudeyla, 2011 ONSC 2718, a court faced with a request for a pre-trial sale must consider the proceeding’s various moving parts (at para. 20):

Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course.  One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible.  At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.

A party’s entitlement to an order for exclusive possession is a factor to be considered by the court on a motion for a pre-trial sale, however, it is not determinative. As noted by Wright J. in Walters v. Walters, 1992 CanLII 8599 (ON SCDC) (at para. 15):

A claim for exclusive possession is a substantive property right. It is determined on the facts as they are shown to exist at the trial. Entitlement or non-entitlement to an order for exclusive possession at a time prior to trial is not determinative of the issue whether or not a sale should be ordered prior to trial. For example, the spouse moving for sale may have left the matrimonial home and taken the children to another community. The resisting spouse may be alone in the matrimonial home without any right to or need for exclusive possession before trial, but he or she may be claiming exclusive possession as an integral part of a claim for custody at trial.

In this case, the respondent’s request for a pre-trial sale of the matrimonial home is made pursuant to the Partition Act, which provides at ss. 2–3:

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

The test to be applied by the court in determining whether to direct the pre-trial sale of a matrimonial home was best summarized by McGee J. in Goldman, at paras. 17-19:

[17]           A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.

[18]           To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act.  If not, then the right to sale prevails.  If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

[19]           There have been a number of cases in which the court has denied an interim motion for sale prior to trial such as  Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3^rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811  and more recently, Kereluk v. Kereluk  2004 CanLII 34595 Ontario S.C.J.  In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.

The impact of a sale on any dependent children residing in the matrimonial home is a consideration in determining whether a sale is appropriate. As is the case with other factors, however, it is not determinative. In Delongte v. Delongte, 2019 ONSC 6954, Shaw J., faced with an argument that the matrimonial home ought not to be sold because it would be disruptive to the children, noted the following at paras. 38-42:

[38]      The applicant’s position is that the home should not be sold as it is the only home the children have known. The children have significant attachment to that house, it is close to their school and it provides them with a sense of stability. If that was a sufficient basis to resist the sale of a matrimonial home following separation, no matrimonial home would be sold in situations where a spouse wished to remain in the home with the children. In most cases, the children are attached to the home, it is close to their school and it provides a sense of stability. That is not, in and of itself, a sufficient basis to defeat a presumptive right to sell a jointly owned property, pursuant to the Partition and Sale Act.

[39]      The applicant submits that selling the matrimonial home is extreme relief. I do not agree. An order for the sale of the matrimonial home is relief that is routinely sought in matrimonial litigation. It is not uncommon that parties wish to access the equity in the matrimonial home for a variety of reasons such as purchasing other property or paying debt.

[40]      Based on a review of the jurisprudence as set out above, there is no basis for the applicant to successfully resist the sale of the matrimonial home. Although she alleges that the children have been having difficulty with the separation and have attended counselling, that is an all-too-common occurrence in high conflict situations. The children are young teenagers and there was no independent evidence led as to how the sale of the home might have a detrimental impact on their well-being, other than what can be typically expected when parties separate and then reformulate a new family unit after separation. Separation is a very dramatic and life-changing event for all involved. It means moving on from the familiar – often including the matrimonial home – to the new and unfamiliar.

[41]      In most situations where parties separate, there is a transitional period of time when financial necessity dictates that the home is sold and the parties must move into their own respective homes. It is to be expected that the children will be dislocated from their home, which will be difficult – as it always is in these situations.

[42]      Based on a review of the evidence, there is no child-focused reason not to sell the home.

Child-focused reasons to decline a request for sale and order exclusive possession include the need to provide security for child support payments (Ariyaratne v. Ariyaratne, 2012 ONSC 1487, para. 23; Duhnych v. Duhnych, 2004 CanLII 11777 (ON SC), para. 65).”

            Sokoloski v. Sokoloski, 2022 ONSC 4590 (CanLII) at 14-17

“The court does not have the authority to grant a spouse the right to purchase the other’s interest in the matrimonial home or the right of first refusal: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] 8 O.R. (3d) 41.

In Brienza, Perell J. summarized the law at paras. 37 and 38:

The court does not have the jurisdiction to compel one co-owner to sell to the other, although the co-owners may participate in the court-ordered sale of the property in the open market; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Legg v. Draper-Legg, [2004] O.J. No. 606 (S.C.J.); Greenbanktree Power Corp. v. Coinamatic Canada Inc., supra.

The court does not have the jurisdiction under the Partition Act to grant a right of first refusal to either co-owner: Dibattista v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443 (C.A.). In Silva, supra, the court noted that where a sale is ordered, the respondent may bid in the sale. See also: Glick v. Carr, [1991] O.J. No. 1588 (Gen. Div.).

See also: Buttar v. Buttar, 2013 ONCA 517 (CanLII), at para. 64: “This court has jealously guarded the rights of joint owners to the best price for jointly-owned property”; Laurignano v. Laurignano, 2009 ONCA 241 (CanLII), at para. 3; Watson v. Watson, 2015 ONSC 2091 (CanLII), at paras. 34-37; McColl v. McColl, 1995 CanLII 7343 (ON SC), at para. 29; and Kokaliaris v. Palantzas, 2016 ONSC 198 (CanLII), at para. 44.”

         Khan v. Khan, 2019 ONSC 4687 (CanLII) at 19-21

“The Arbitration Act entrenches the primacy of arbitration proceedings over judicial proceedings once the parties have entered into an arbitration agreement: Cityscape Richmond Corp. v. Vanbots Construction Corp. 2001 CanLII 24155 (ON CA), [2001] O.J. No. 648, at para 19 (“Cityscape”); Haas v. Gunasekaram, 2017 ONCA 744, at para 12 (“Haas”); and TELUS Communications Inc. v. Wellman, 2019 SCC 19, at 63. Arbitration clauses are to be given a large, liberal and remedial interpretation to effectuate the dispute resolution goals of the parties: Ibid, at para 19.

The courts have limited ability to intervene in disputes that fall under the Arbitration Act, as provided for in Section 6 of the Act which states that:

6. No Court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations;

2. To ensure that arbitrations are conducted in accordance with arbitration agreements;

3. To prevent unequal and unfair treatment of parties to arbitration agreements; and

4.  To enforce awards.

As held by Trafford, J. in Cityscape,

“this legislation provides a forceful statement signalling a shift in public policy and attitude towards the resolution of disputes in civil matters through consensual dispute resolution mechanisms. See Ontario Hydro v. Dennison Mines Limited, [1992] O.J. No. 2948 (Blair, J.). The Act is designed to encourage parties to resort to arbitration as a method of resolving their disputes in commercial and other matters and to required them to hold to that course once they have agreed to do so….

Section 8(2) of the Act empowers the arbitral tribunal to determine any questions of law that arise during the arbitration. Section 17(1) of the Act empowers the tribunal to decide questions of its own jurisdiction including questions respective the existence or validity of the arbitration agreement itself. Section 31gives the tribunal broad powers to decide disputes in accordance with the law and equity and makes reference to the power to order specific performance, injunctions and other equitable remedies.

Similarly, the Supreme Court of Canada in TELUS Communications Inc. v. Wellman, noted that s. 6 of the Arbitration Act, “signals that courts are generally to take a “hands off” approach to matters governed by the Arbitration Act.”

Section 7(1) of the Arbitration Act directs courts to give effect to arbitration agreements. This section of the Act sets the general rues that the court “shall” stay a proceeding covered by an arbitration agreement. Section 7(1) provides:

“If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding”. [emphasis added]

Subsection 17(1) of the Arbitration Act bestows upon arbitral tribunals the power to determine any questions as to the existence and validity of the arbitration agreement, also known as the principle of competence-competence: Section 17(1) of the Arbitration Act states, (1) “An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement; (2) if the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be valid.” This section of the Act reinforces the legislation’s clear intent to promote and support arbitration clauses.

As set out in Haas, the analytical framework following by courts in determining whether a stay under Section 7 of the Arbitration Act ought to be ordered, is as follows:

1. Is there an Arbitration Agreement?

2. What is the subject matter of the dispute?

3. What is the scope of the arbitration agreement?

4. Does the dispute arguable fall within the scope of the arbitration agreement?

5. Are there grounds on which the court should refuse to stay the action?”

            Pezo v. Pezo et al., 2021 ONSC 5406 (CanLII) at 42-48

“Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances.  Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended.  There are two ways that the federal regime allows courts to affect the quantum of retroactive awards (D.B.S., par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., par. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award.  Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).

The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable.  In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.  However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent.  Where the payor parent does not do so, and thus engages in blameworthy behaviour, there is no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing (D.B.S., par. 125).”

J.C.M. v. K.C.M., 2016 ONCJ 475 (CanLII) at 74-75

“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22).  The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)).  Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person.  In the case of a child, family violence includes the direct or indirect exposure to such conduct.

Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.  Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence.  For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

1. 1. 1. Making numerous unsubstantiated allegations against the other party;

1. 1. 2. Unilaterally changing court-ordered parenting time terms without justification; and,

1. 1. 3. Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187).”

     Malone v. Cappon, 2023 ONSC 4344 (CanLII) at 120-121

“The father further argues that if L.G. resides with the maternal grandmother, he should not be required to pay child support to the mother.  I disagree.  In Lefebvre v. Gowan, 2014 ONSC 6221 (CanLII), Justice Robert Smith stated:

[9]     The maternal grandparents have provided assistance to their daughter by allowing the Respondent mother to reside at their residence with Taylor and by providing the funds required by the Respondent mother to pay for prescription medications, and psychological counselling for Taylor. I find that the fact that the maternal grandparents have assisted their daughter in the above manner does not remove the Applicant father’s responsibility to provide child support and contribute to special expenses for a child for whom he is in loco parentis.

[Emphasis added]

The Ontario Court of Appeal approved Lefebvre v. Gowan in Squires v Crouch 2016 ONCA 774 (CanLII), when upholding a trial judgment that awarded child support to a mother although the maternal grandmother was paying some of the grandchildren’s s. 7 expenses.

In Wright v. Conway, 2018 ONSC 133 (CanLII), at paras. 50 to 55, Jarvis J., after reviewing the relevant authorities, concluded, “In none of the authorities referenced was a parent relieved of their child support responsibility in circumstances where the child remained a dependent and attended school but lived with another family member.”

            T.G. v. S.G., 2020 ONSC 4662 (CanLII) at 19-21

“The test to determine the capacity to consent to treatment is set out in s. 4(1) of the HCCA which provides that:

(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Therefore, there are two parts of this test:

• • • the person is able to understand the information relevant to making the decision about the treatment; and,
    • the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.

The inability to understand the information relevant to making a decision about treatment must be as a result of a mental disorder.  As stated in Starson v. Swaze:

[A] patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity.  The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences.  For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences.  Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences.  A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision: Starson v. Swaze, 2003 SCC 2, at para. 81.”

            A.B. v. Shafro, 2021 ONSC 5670 (CanLII) at 19-21

“An award for retroactive child support should generally be retroactive to the date when the recipient parent gave the payor parent “effective notice” of their intention to seek an increase in support payments: Hachey, at para. 49, citing S. (D.B.) v. G. (S.R.), 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 (S.C.C.).

The factors to be considered when deciding whether a variation in child support should be retroactive or not, include:

1. 1. 1. a reasonable excuse for why support was not sought earlier;
      2. the conduct of the payor parent;
      3. the circumstances of the child; and
      4. any hardship that may be occasioned as a result of a retroactive order: Hachey, at para. 57.

Where the court determines that a retroactive order is appropriate, there are typically four dates to choose from in terms of the date of retroactivity:

1. 1. 1.  the date when the application was made to the court;
      2. the date when “formal notice” was given to the payor parent (e.g., service of a motion to change);
      3. the date when “effective notice” was given to the payor parent; and,
      4. the date when the amount of child support should have been increased based on the changed circumstances: see Hachey, at para. 59.

If there is retroactivity, the award should generally be retroactive to the date of “effective notice”. However, the court usually does not go back more than three years before “formal notice” was given unless the payor parent has engaged in blameworthy conduct: see Hachey, at paras. 60-61 and 93-94.”

            Metcalfe v. Metcalfe, 2022 ONSC 4471 (CanLII) at 60-63