“Where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to children’s lifestyle and circumstances on an interim basis: Kennedy v Hull, 2005 ONCJ 275, at para 9.”
Category: Uncategorized
November 24, 2023 – Motions To Change & Imputed Income
“Motions to change support are governed by subsection 37(2.1) of the Family Law Act which reads as follows:
37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
The court’s authority to make a retroactive support order on a Motion to Change is contained in clause 34(1)(f) of the Family Law Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
(f) requiring that support be paid in respect of any period before the date of the order;
As income was imputed to the father by Justice Sherr, the father must start by demonstrating that circumstances have arisen since the date of the previous order such that it is no longer appropriate to impute income to him or at least that it is no longer appropriate to impute income to him in the amount previously determined by the court: Trang v. Trang, 2013 ONSC 1980 (CanLII).
In paragraph 52 of Trang v. Trang, 2013 ONSC 1980 CanLII, the court wrote,
A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.
Or,
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.”
Hutchinson v. Crooks, 2022 ONCJ 620 (CanLII) at 18-21
November 23, 2023 – Failing to Supervise Can Be Material Change
“Section 29(1) of the Children’s Law Reform Act (CLRA) provides:
A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.
This section prohibits a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order. Section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary Orders (See: BRM v MAEM, 2021 ONSC 2791 at para 39).
If the Court finds that a material change has occurred:
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- The Court should consider the matter afresh, without defaulting to the existing arrangement;
- The Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;
- The Court must be guided by the statutory criteria set out in section 24 of the CLRA;
- Both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
- The Court should limit itself to whatever variation is justified by the material change in circumstance.
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(See: BRM v MAEM, 2021 ONSC 2791 at paras 41-42)
A breach of supervision terms of an access order by a parent and grandparents can constitute a material change. In LW-A v. JC 2017 ONCJ 741 the Honourable Justice Sherr held that because the grandparents breached the supervision terms of the access order by failing to supervise the father’s visits with the child, they were not reliable and trustworthy. The Court held that “the child’s safety requires that his access with the father be fully supervised by an independent third party” (at paras 114-118).
As per section 24 of the CLRA, the court is required to consider only what is in the best interests of the child in making a parenting order or a contact order. In determining the best interests of a child, I am to consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being including those factors set out in section 25(3) of the CLRA.
Pursuant to section 34 of the CLRA, the court may give such directions as it considers appropriate for the supervision, by a person, a Children’s Aid Society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. The person, society or body must consent to provide supervision.
Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: VSJ v LJG, 2004 CanLII 17126 (ON SC), [2004] OJ No 2238).
In BRM v MAEM 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child’s views and preferences are in favour of supervision.”
November 22, 2023 – Judicial Discretion to Reject Settlements
“In Richardson v Richardson 2019 ONCA 983 (ON CA) the Ontario Court of Appeal discussed the discretion which judges have when presented with terms of settlement, particularly in relation to parenting issues.
25 There is no dispute about the importance of settlements in family law. Settlements are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.
26 Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.
27 If a judge rejects a settlement, the reasons for rejecting the settlement should be provided. Moreover, if the judge does not take any steps to facilitate settlement — such as sending the parties away with some direction as to the aspects of the agreement that are of concern, or arranging a settlement conference either with him or her or with another judge — the reason for this should also be provided. Without explaining the basis upon which the parties’ settlement is rejected, the judge leaves the parties with no way of knowing, what, if anything, they could do to address the court’s concerns. The concerns may have been of a nature that could be addressed, but in the absence of reasons the parties will have no opportunity to address them.”
November 21, 2023 – Judicial Discretion to Release Transcripts
“The Consolidated Provincial Practice Direction governs the release of digital court recordings. Under the Consolidated Provincial Practice Direction:
C-68. The release of digital recordings will be at the court’s discretion and the use of all digital recordings will be subject to any court order and any common law or statutory restriction on publication applicable to the particular proceeding.
In particular, the section on “Restrictions on Access to Digital Recordings from DRDs” makes clear that unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in respect of “civil and family motions and applications.”
Restrictions on Access to Digital Recordings from DRDs
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- All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
- Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings:
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(a) in camera proceedings or any portion of a proceeding that is heard in camera;
(b) private or closed hearings (e.g. pursuant to ss. 87 of the Child, Youth and Family Services Act);
(c) proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding (e.g., pre-trial conferences held in court with self-represented accused, pursuant to rule 28.05(4) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario), proceedings under the Youth Criminal Justice Act); and,
(d) case, settlement and trial management conferences pursuant to rule 17 of the Family Law Rules; and,
(e) civil and family motions and applications (e.g. civil motions and applications under rule 37 and rule 38 of the Rules of Civil Procedure, family motions under rules 14 and 15 of the Family Law Rules).
Accordingly, digital recordings of family motions are not available unless a judge orders otherwise. Also see Mother Doe v. Havergal College, 2020 ONSC 5550.”
November 20, 2023 – Three Conceptual Bases for Spousal Support
“The Supreme Court of Canada in Bracklow (1999) set out three conceptual bases for entitlement to spousal support, namely, compensatory, contractual, and non-compensatory: 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at 442. The Court distinguished the compensatory from the non-compensatory basis as follows:
39 …Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation“, which may support the same argument. …
40 …To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.
41 Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives — to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments — are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. “[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6)(c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), “the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage”, as an explicit recognition of “non-compensatory” support (“Spousal Support After Moge”, supra, at pp. 371-72).
42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act — to promote economic self-sufficiency — may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health. [Emphasis added.]”
November 17, 2023 – Settlements and Costs
“Settlements do not attract costs consequences in the same manner as argued matters; in the case of an agreed-upon result, the concept of success is different. The case law indicates that the success of a negotiated settlement must be much clearer and more substantial than in the case of an argued matter to attract costs. The issue of success must indicate, in the wording of one case, a “clear capitulation” by one party to another: see Atkinson v. Houpt, 2017 ONCJ 316. Other cases have said that the measure of success for costs consequences must be “overall success”: Scipione v. Del Sordo, 2015 ONSC 5982.
The reason for this is clear as pointed out in the latter case: in the course of negotiating a settlement, costs should not be permitted to hijack the process. If a party is negotiating while keeping his or her eyes on the terms of their offer, this impedes settlement for obvious reasons. A party conducting himself in this manner puts the cart before the horse and to place costs at the forefront of negotiations is an impediment to settlement and to be discouraged. As noted by Kurz J. in Frape v. Mastrokalos, 2017 ONCJ 915 adopting the words of Starr J. in Shute v. Shute, 2017 ONCJ 533:
Where a matter settles, the success and/or reasonableness of the conduct of the parties is a consideration but not the most important one. In such cases, the emphasis should be on discouraging inappropriate conduct and promoting settlement. Thus, instead of identifying a reason not to award costs, the court must identify a compelling reason to make an award.”
November 16, 2023 – Appeals from Unopposed Proceedings
“First, this court will not typically hear an appeal by a party from an unopposed proceeding: Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418, at para. 56. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”
November 15, 2023 – Foreign Divorces
“The Divorce Act, R.S.C., 1985, c. 3. (2nd Supp.) governs foreign divorces in the following prescribed manner:
Recognition of foreign divorce
22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
Recognition of foreign divorce
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.
Other recognition rules preserved
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act
Faezeh and Alireza were not habitually resident in Iran for the year immediately preceding the commencement of divorce proceedings, and the divorce was not granted on the basis of Faezeh’s domicile of the granting authority. Accordingly, the question of whether the divorce was valid falls to be determined under s. 22(3). Here, the common law creates a presumption that a foreign divorce is valid.
Under subsection (3), the courts will recognize a foreign divorce in the following circumstances:
a) where the jurisdiction was assumed on the basis of the domicile of the spouses;
b) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;
c) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;
d) where the circumstances of the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;
e) where the petitioner or Respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted, or
f) where the foreign divorce is recognized in another foreign jurisdiction with which the petition or Respondent has a real and substantial connection.
Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 14.
In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 32, the Supreme Court of Canada discussed the concept of a real and substantial connection to the granting jurisdiction:
The “real and substantial connection” test requires that a significant connection exist between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.”
November 14, 2023 – Summary of Summary Judgment
“A summary of the proper approach to be taken in summary judgment motions in child protection matters as directed by the Ontario Court of appeal in Kawartha [2019 ONCA 316] is set out in paragraph 80 of that decision as follows:
[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:
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- Hryniak’sfairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
- The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
- The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
- Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
- The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”
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