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“This is an interim proceeding.  The importance of that cannot be lost.  An interim order should, as much as possible, stabilize the situation for the parties and the children so that the litigation can move forward to finally resolve the broader issues by conferencing, settlement or trial (F.B. v. C.H., 2021 ONCJ 275).

There is no doubt and it appears no dispute that the parties cannot continue to reside separate and apart under the same roof.  In considering the request by the applicant for exclusive possession, I must consider the criteria enumerated in s. 24(3) of the FLRA.  Most important to me are the factors mentioned in s. 24(3)(a), (c) and (e):

(a)  the best interests of the children affected;

…

(c)  the financial position of both spouses;

…

(e)  the availability of other suitable and affordable accommodation;

As directed in Liao v. Liao, 2003 CanLII 2176 (ONSC) at para. 25:  … “particularly in cases where the family’s financial position allows the temporary maintenance of two households, the children’s interests should outweigh the proprietary interest of the spouses in possession of the matrimonial home.”

            Brac v. Brac, 2022 ONSC 4519 (CanLII) at 25-27

“A person making a decision to start a business in which he or she has no experience may result in a finding that he or she is intentionally underemployed: See: Dang v. Hornby, 2006 CanLII 12973 (ON SC), 2006 Canlii 12973 (OSC); Ruszczak v. Scherbluck, 2012 ONCJ 14 (CanLII); Charron v. Carriere, 2016 ONSC 4719 (CanLII).  Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances: Smith v. Smith, 2012 ONSC 1116 (CanLII).

Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663 (CanLII); Charron v. Carriere, 2016 ONSC 4719 (CanLII).

When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (ON CA), 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.”

J.C.M. v. K.C.M., 2016 ONCJ 475 (CanLII) at 158-160

“I am of the view that the evidence should be admitted in the circumstances.  In N.H v. J.H., [2017 ONSC 4414 (CanLII)] the Court, which entertained a motion to introduce new evidence while a trial decision was under reserve, the Court made the following comments on the propriety of the trial judge receiving new evidence, which I find apt in the present case:

19      Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

20      It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits. I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.

21      Trials are of course subject to formal procedures. Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party’s case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy. Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.

….

23      It is certainly possible that the change in circumstances which has taken place since the parties closed their cases would meet the test for re-opening the trial. There can be no question that the trial judge has that authority at a time when she has not yet released her decision. Whether to entertain that evidence or to re-open the trial is a decision for her and her alone and it would not be appropriate for a motions judge to entertain that evidence on a motion while the decision remains under reserve.”

            Anderson v. McIntosh-Anderson, 2018 ONSC 4688 (CanLII) at 113

“Additional guidance about supervision or termination of parenting time is provided by VSJ v. LJG 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.J.) (Blishen J.).

In that case, the court was considering whether a final order for supervised parenting time or termination of parenting time was in a child’s best interests. The court stated, at para. 128,

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.  To deny access to a parent is a remedy of last resort.

The court reviewed the case law and found that the factors most commonly considered by courts in terminating parenting time were:

1. 1. 1. 1. 1. Long term harassment and harmful behaviours toward the custodial parent causing that parent and the child stress and fear,
            2. History of violence, unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being,
            3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent,
            4. Ongoing severe denigration of the other parent,
            5. Lack of relationship or attachment between non-custodial parent and child,
            6. Neglect or abuse to a child on the access visits,
            7. Older children’s wishes and preferences to terminate access.

The court noted that none of the cases reviewed dealt with one factor alone.  In every case, there were a multitude of factors which had to be carefully considered and weighed in determining whether to terminate parenting time was in the best interests of a child.

The court continued, at para. 137,

As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination.  It is possible through a supervision order to do the following: 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.

The court noted, at para. 138, “Supervised access is seldom viewed as an indefinite order or long-term solution…There may be occasions, however, where medium or longer term supervised access is in the child’s best interests.”

The court then quoted Professor Martha Bailey’s article “Supervised Access: A Long Term Solution?” 37 Family and Conciliation Courts Rev. 478 (October 1999), wherein she said, at p. 480,

The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child.  The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.

The court continued, at para. 140,

In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship.  Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the access parent continually misses visits or is inappropriate during the access then termination must be considered…If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be a viable option.

The court also stated, at para. 149, “Although supervised access can continue on more than just a short term basis, it is never a permanent solution to access problems.”

            Tsagaris v. Kolovos, 2020 ONSC 4672 (CanLII) at 320-328

“The appellant also takes issue with what she refers to as the trial judge’s deviation from the “Rule of 65”, as set out in s. 3.3.3 of the SSAGs – that is, where the length of cohabitation in years plus the recipient’s age at the date of separation equals or exceeds 65, indefinite spousal support is appropriate: Climans v. Latner, 2020 ONCA 554, 449 D.L.R. (4th) 651, at para. 3.

Here again, the appellant’s position fails to consider the more nuanced explanations provided in the SSAGs. Section 7.5.3 of the SSAGs explains further:

The without child support formula provides that indefinite (duration not specified) support will be available even in cases where the marriage is shorter than 20 years if the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65. In a shorthand expression, we described this as the “rule of 65”. [Emphasis in original.]

The SSAGs make very clear at s. 13.8 that indefinite support is not permanent support:

Under the Advisory Guidelines duration of spousal support will be indefinite, under both formulas, where the parties have been married for 20 years or more, or where the “rule of 65” applies. But indefinite support, under the Guidelines as under the current law, does not necessarily mean that support is “permanent” or “infinite”, only that the duration has not been specified. We have purposely changed the language in this final version to convey that notion; our new terminology is “indefinite (duration not specified)”. Duration may be specified at some point in the future and support terminated, if entitlement ceases. [Emphasis added.]

Moreover, the SSAGs explain at s.7.5.3 that the Rule of 65 is, “intended to respond to the situation of older spouses who were economically dependent during a medium length marriage and who may have difficulty becoming self-sufficient given their age (emphasis added)”.”

         Politis v. Politis, 2021 ONCA 541 (CanLII) at 40-43

“However difficult it may be for her, the mother’s past, present, or current mental health cannot usurp the role she plays in ensuring the best interests of the children are met, both currently and in the long-term.

“It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means”: Stuyt v. Stuyt, 2009 CanLII 43948 (ON SC), 71 R.F.L (6th) 441 (ON SC), at para. 62. This is not just a parent’s duty to the court, but also to their children:”[i]t is also the role of parents to instil in their children a respect of the law and of legal institutions. A parent who does not do so does a disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life”: Stuyt, at para. 62.

In Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667, at para. 28, the Court of Appeal stated:

Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order.” [Citations omitted.]”

            M.P.M. v. A.L.M., 2022 ONSC 3775 (CanLII) at 124-126

“Sections 2 and 3 of the Partition Act govern the partition and sale of property held in a joint tenancy or as tenants in common. A joint tenant has a prima facie right to an order for partition and sale unless the joint tenant opposing the sale can establish that the other party is seeking to do so for malicious, vexatious or oppressive reasons: Lalonde v. Agha, 2021 ONSC 5223.

An order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656. As the court stated in Hutchison-Perry v. Perry, 2019 ONSC 4381, at para. 37:

Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act…In such a case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order…or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced…[citations omitted]

The relevant considerations as summarized in Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16 in the circumstances of this case are:

• • • • • Where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.
        • The court must consider the impact of a proposed sale on children or a vulnerable spouse, including emotional impact. The fundamental need to ensure that they have appropriate availability and affordability of alternate housing must be considered.
        • Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.
        • The availability of a trial within a short period might reduce the pressure for an immediate sale.
        •  A request for a sale during summer months may entail some timeliness if seasonal market opportunities are favourable or to reduce the likelihood of a child having to change residence while a school year is in session.
        • The stage of a child’s academic progress may be relevant.
        • The mere existence of children in a household is not in itself sufficient to oppose a sale; the party opposing the sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents separate.
        • Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage.”

            Barber v. Stratton, 2022 ONSC 4376 (CanLII) at 10-12

“Breaches of a court order can constitute a material change in circumstances.  See: LW-A v. JC, 2017 ONCJ 741; Maloy v. Pantalone, 2021 ONSC 7734.

…

Worsening conflict can constitute a material change.  Wreggit v. Belanger, 2001 CanLII 20827 (ON CA); Hackett v. Sever, 2017 ONCJ 93.”

            Brethour v. Anderson, 2022 ONSC 4341 (CanLII) at 22, 25

“It would not be in Jesse’s best interests to force or attempt to force him to have contact with his mother or to undergo counselling.

As the Court of Appeal stated in De Melo v. De Melo, 2015 ONCA 598, at para. 12,

…court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements.”

            Ransom v. Dasti, 2020 ONSC 4526 (CanLII) at 47-48

“Inadequacy of reasons does not provide a free-standing right of appeal. Rather, an appellant who argues insufficiency of reasons must show not only a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of the right to appeal: see R. v. W.O., 2020 ONCA 392, 454 D.L.R. (4th) 54, at para. 13, aff’d 2021 SCC 8, 454 D.L.R. (4th) 51; Dovbush v. Mouzitchka, 2016 ONCA 381, 399 D.L.R. (4th) 69, at para. 22.

The question in every case is whether the reasons provide the basis for meaningful appellate review of the correctness of the trial judge’s decision. Trial judges are not held to an abstract standard of perfection. In evaluating a trial judge’s reasons, appellate courts must consider the time constraints and general press of business in the court: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.

In the context of busy family law trial courts, there must be a high bar for the insufficiency of reasons. This high bar is mandated by the primary objectives of the Family Law Rules captured in r. 2(3). This rule emphasizes saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving the case appropriate court resources while taking account of the need to give resources to other cases.”

         Ferguson v. Ferguson, 2022 ONCA 543 (CanLII) at 46-48