“In Sydor v. Sydor, 2003 CanLII 17626 (ON CA), [2003] 178 O.A.C. 155 (C.A.), Feldman J.A. said at paras. 22-27 that the common law rule is that a separation agreement is void upon reconciliation, “subject to a specific clause in the agreement that would override the common law”. She further noted that “a specific release of all rights to a particular property can be viewed as evidence that the parties considered the disposition of that property final and binding, regardless of what may occur in the future”.
Category: Uncategorized
April 8, 2024 – Can A Trial Judge Order a Section 30 Assessment?
“The mother contends that the trial judge erred by ordering her to undergo a psychiatric assessment at the end of trial before determining whether she could have unsupervised access to the children. She argues that the trial judge did not have jurisdiction at the end of the trial to make such an order, and that assessment reports should only be reserved for clinical issues.
In this case, the trial judge held that the best interests of the children required information about the mother’s mental health for the court to assess any affect on the children.
In my view, the trial judge did have jurisdiction to order an assessment pursuant to s. 30 of the CLRA and/or s. 105 of the CJA. A plain reading of these provisions and a review of the case law supports the trial judge’s request for a psychiatric assessment in this case. The cases cited by the trial judge on this point suggest that an assessment can be ordered where there is sufficient evidence that such an assessment would be directly pertinent to determining the best interests of the child: V.S.J. v. L.J.G. (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319, (Ont. S.C.), at paras. 147-48; Merkand v. Merkand, 2006 CanLII 3888 (Ont. C.A.), at para. 6, leave to appeal refused, [2006] S.C.C.A. No. 117; Young v. Young, 2013 ONSC 4423, at paras. 87-89; Kucan v. Santos, 2017 ONSC 6725, at para. 78; Children’s Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), at paras. 71, 87.
As for the timing of the order, the trial judge was faced with a difficult situation. The trial judge noted that neither party had requested a s. 30 assessment at trial, although he also noted that the father had initially requested one at the 2014 motion (which request was not pursued further). In my view, there is nothing in s. 30 of the CLRA that would prohibit the trial judge from ordering an assessment at the end of the trial, especially in light of the trial judge’s willingness to revisit his preliminary conclusion about access upon obtaining the results of the assessment. Section 30 of the CLRA is silent as to when assessments may be ordered, so it follows that the trial judge had the discretion at the end of the trial to order an assessment. The trial judge explained clearly why he needed this evidence to determine whether the mother having unsupervised access was in the best interests of the children:
The motions judges were concerned with the various emails and other communications authored by [the mother]. Those concerns continue. She made disturbing comments regarding depression and ending her life. Her explanation cannot be compelling in the absence of a medical opinion. It is beyond my ability to reach any conclusion as to the state of her mental health.
I would defer to the trial judge’s decision that the assessment was reasonably necessary to help determine material issues before the court.
I do not accept the mother’s submission that the trial judge erred because such reports should only be reserved for clinical issues. The trial judge determined at the outset of his reasons that there were clinical issues identified at trial that had, and may continue to have, a direct impact on the children. In any event, the weight of the jurisprudence suggests that there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA; rather, the inquiry is fact-driven and flexible: see e.g., Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435, at para. 48; A.A. v. D.S., 2022 ONSC 1389, at paras. 30-45. See also Kramer v. Kramer (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont. S.C.); Parniak v. Carter (2002), 2002 CanLII 45671 (ON CJ), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 2000 CanLII 20393 (ON SC), 10 R.F.L. (5th) 276 (Ont. S.C.).”
April 5, 2024 – Child Unable to Withdraw From Necessities of Life
“The Respondent further argues that the letters from Dr. Moss and Dr. Wong do not establish a “causal nexus” between S.H.’s health issues and her ability to be enrolled full time in university.
The onus is on the Applicant to establish that S.H. is still a “child of the marriage”: Szitas v. Szitas, 2012 ONSC 1548 at para. 28. Where the child is pursuing a course of education, the ultimate question is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child”: Szitas at para. 37, citing Geran v. Geran, 2011 SKCA 55, 97 R.F.L. (6th) 68. The analysis of whether a child is unable to withdraw from parental charge involves a careful assessment of the child’s overall condition, means, needs and circumstances. An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in half-hearted or ill-conceived educational endeavours: Laramie¸ citing Kohan v. Kohan, 2016 ABCA 125, 77 R.F.L. (7th) 44.
When the child is attending school part-time because of a disability, “cogent evidence” about the nature and extent of the child’s disability or illness and the impact on the child’s ability to obtain the necessities of life on their own is required: Szitas at para. 39. Children may have physical or mental health conditions which affect their abilities to complete school and obtain employment and still be capable of becoming financially independent. In Szitas, although the child’s doctor had provided a letter stating that the child’s depression and anxiety “affected his ability to complete school and obtain employment”, Chappell J. found that there was insufficient evidence about how these conditions affected the child’s day-to-day functioning, whether he had attempted to secure full or part-time employment, whether he was entitled to government subsidies, and whether his conditions had improved since the writing of the letter.
Although compelling evidence is required to establish ongoing entitlement to support, and that evidence must show a causal nexus between the disability and the inability to withdraw from parental charge, I find that the nexus need not be explicitly presented by a medical expert, as the Respondent contends. The court may draw conclusions about the impact of the disability on the child from the totality of the evidence presented.
On an interim motion for support, there must be a prima facie case for entitlement: Maelbrancke v. Proctor, 2016 ONSC 1788 at para. 9, citing Lopez v. Lopez (1993), 1993 CanLII 16085 (ON SC), 48 R.F.L. (3d) 298 (Ont. C.J.), Butzelaar v. Butzelaar (1998), 1998 CanLII 13423 (SK QB), 174 Sask. R. 125 (Q.B.), and Land v. Aitchison, 2005 CarswellOnt 372 (Ont. S.C.J.). This is a relatively low threshold of proof.
I find that the Applicant has met this burden of proof and that S.H. is entitled to continue to receive child support on an interim basis. There is evidence that S.H. is enrolled part time at Y[…] University and attending within the academic accommodations granted to her. There is also evidence from S.H.’s doctors and from the Applicant that S.H. suffers mental and physical health challenges which limit her academic functioning. Her transcripts show that she has failed some courses but achieved passing grades as high as a B+ in others. I note also that this is S.H.’s first university degree, and she expects to complete the degree in a little over a year. The courts will generally allow ongoing support for a child who is diligently pursuing studies in a suitable program until the completion of at least the first college or university program: Laramie at para. 45, citing Marsh v. Jashewski, 2011 ONSC 3793, 5 R.F.L. (7th) 360 and Caterini v. Zaccaria, 2010 ONSC 6473, 97 R.F.L. (6th) 249.”
April 4, 2024 – Rectification
“Rectification is available where a document incorrectly expresses the parties’ true agreement. The purpose of rectification “is to give effect to the party’s true intentions, rather than to an erroneous transcription of those true intentions”. The premise underlying this remedy is that it would be unfair to hold a person to be bound by a transaction they never agreed to: Canada (Attorney General] v. Collins Family Trust, 2022 SCC 26 at para. 42 and Canada (Attorney General) v. Fairmont Hotels Inc, 2016 SCC 56 at paras. 12 and 13. It is not available where a party seeks a different agreement; it is meant for a situation where there is an error in recording the agreement entered into. That is, “… rectification aligns the instrument with what the parties agreed to do, and not what, with the benefit of hindsight, they should have agreed to do.” (Fairmont Hotels at para. 19).
Rectification may be granted on the basis of a common or unilateral mistake (Fairmont Hotels at paras. 14 and 15).
In order for the court to rectify on the basis of a common mistake, the moving party must show, on a balance of probabilities, that there was a prior agreement with ascertainable and definite terms, that it was still in effect at the time the agreement was executed, that the instrument fails to accurately record the agreement, and the instrument, if rectified, would carry out the prior agreement (Fairmont Hotels at para. 38 and Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19; [2002] 1 SCR 678 at paras. 37 to 41).
Rectification is also available when a unilateral mistake is made if the party resisting rectification knew or ought to have known about the mistake, and permitting the party to take advantage of the mistake would be fraud or the equivalent of fraud (Fairmont Hotels at para. 15, Performance Industries at para. 38). Fraud in this context can be “equitable fraud or constructive fraud” and may include unfair dealings and unconscionable conduct (Performance Industries para. 39). The inquiry is an objective one. “The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.” McCabe v Tissot 2015 ONSC 2557 at para. 46.”
April 3, 2024 – Using Affidavits At Trial
“The use of affidavit evidence at trial is increasingly relied upon” as a tool to shorten and bring focus to the trial process, with the intention of minimizing costs of the parties: Rule 23(20.1), Family Law Rules. It can be quite effective. It can also prove to be a challenge for counsel accustomed to drafting affidavits for use on interlocutory motions. Hearsay evidence is permitted in affidavits for procedural matters before the Court; it is not permitted for trials.
I accept the general principle that the rules of evidence must be applied in a relatively flexible fashion when considering the best interests of the children: Power v. Power, 2004 ONCJ 281, at para. 51. This ensures all relevant information, which may include evidence of character, lifestyle or past conduct, is before the Court when facing the difficult assessment of what parenting plan is in the best interests of the children. However, the rules of evidence respecting hearsay must not be relaxed at trial simply because a witness provides evidence in chief by way of a sworn affidavit. This applies in all trials, whether contested or uncontested.”
April 2, 2024 – Hearing of Issues At One Time
“As set out in Cunningham v. Moran, 2011 ONCA 476, all claims arising from the breakdown of a marriage ought to be heard at one time.”
April 1, 2024 – The Test On A Motion To Change
“The mother argues that the motion judge erred in her articulation and application of the test on a motion to change. I agree.
Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Sectio 14(b) of the Federal Child Support Guidelines, SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances.
In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688.
The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:
1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
2) the change must materially affect the child; and
3) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.”
March 29, 2024 – Joint Family Venture
“A joint family venture is one of the available remedies where there has been a finding of unjust enrichment. Some courts have held it to be a consideration in the determination of unjust enrichment, but the more accepted approach, based on the framework outlined by the Supreme Court in Kerr, is that it is an available remedy when there has been a finding of unjust enrichment: Kyriacou v. Zikos 2021 ONSC 7589 at para. 122.
Whether here was a joint family venture, is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent, and (d) priority of the family: see Kerr, at para. 89.”
March 28, 2024 – Summary Judgment
“In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that a matter should be resolved by summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and apply the law to those facts, and (ii) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak ,at para. 49. The Supreme Court specifically found that summary judgment rules are to be interpreted broadly; the focus must be on providing access to justice in a timely manner: Hryniak at para. 5
The principles laid out in Hryniak apply to summary judgment motions in family law matters; parties must put their best foot forward and the motions judge is entitled to assume that the evidence before the court is the best evidence available: Chao v. Chao, 2017 ONCA 701 at para. 24.
In Solcz v. Solcz, 2012 ONSC 8457, Kraft J. reviewed a number of decisions which have considered the term “no genuine issue for trial.” At para. 76, she summarized the case law as follows:
The term “no genuine issue requiring a trial” set out in r. 16(6) has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following: “no chance of success;” “manifestly devoid of merit”, or “the outcome is a foregone conclusion” or “no realistic possibility of an outcome other than that sought by the applicant.””
March 27, 2024 – Double Recovery
“As observed at para. 62 of Boston, the payee spouse’s need and the payor spouse’s ability to pay are factors which the court considers when determining spousal support, as is the extent, if any, of “double recovery.” Double recovery is defined by the Supreme Court as the “situation where a pension, once equalized as property, is treated as income from which the pension-holding spouse must make spousal support payments”: Boston, at para. 34. At para. 63 Major, J. noted that it is generally unfair to allow the payee spouse to reap the benefit of the pension, both as an asset and then again as a source of income. At para. 64 Major, J. stated that “to avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown.”
In this case, the applicant’s retirement and diminished income potential is a “material change” to warrant a variation order. This is because the current circumstances would permit a double recovery that was not contemplated by Whitten J. in the initial order. I find that had Whitten J. considered the applicant’s current income from his pension would be used in calculating spousal support, the initial order would have changed in its result.”
At para. 65 Major, J. stated that, in certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset in that double recovery may be permitted:
Where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation.
The two circumstances articulated by Major J., in which double recovery may be permitted, is (1) where the payor spouse has the ability to pay, or (2) where the payee has demonstrated a reasonable effort to use the equalized assets in an income-producing way.”