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“The appellant appeals from the order of Justice Nicholson dated October 12, 2018. Nicholson J. ordered interim without prejudice spousal support payable by the appellant husband as a term of an adjournment of a scheduled settlement conference.  The quantum of spousal support was based on the appellant’s 2017 T4.

…

The settlement conference never started. The time spent focused on the opposed adjournment and the terms for same. The order made is a term of an adjournment, not an order made on the settlement conference under R. 17(8).  While there were other options open including a costs order, making the return date of the settlement conference peremptory etc., the judge has a broad discretion as to the terms of an adjournment, particularly where, as here, one party is delinquent in his financial disclosure and that party is unfairly delaying the progress of the proceeding.”

          Creighton v. Creighton, 2019 ONSC 5706 (CanLII) at 1, 8

“In many cases where the court declined to make a therapeutic order, the court was not satisfied based on the evidence adduced that the proposed therapeutic intervention would be beneficial to the child (See for example Snider v. Laszlo, [2009] O.J. No. 5032, Silver v. Silver and E.H. v. O.K.).  The presence of a professional assessment or opinion clearly setting out the cause(s) of a child’s distress or the family’s dysfunction(s), and the means to address same, will go a long way in convincing the court to make the order, even in the context of a motion for temporary relief.

Therapeutic orders sought in the context of a motion, based on untested and contradictory evidence or without a professional assessment, may run the risk of not properly addressing the issues that they mean to resolve.  On the other end, delays in imposing therapeutic orders in situations of high conflict may increase the risks associated with unjustified rejection, estrangement and alienation.  In the presence of such family dysfunction, the longer a child or parent goes without therapeutic intervention and (as is often the case) without access, the more difficult it will be to repair the relationship (McClintock v. Karam, para. 34).

In Testani v. Haughton, Justice Jarvis J. stated that resistance to therapy was an important factor to consider, but that it was not the determining factor as to whether such an order should be made.  There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling.  The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage.

In more severe estrangement or alienation cases, courts have often imposed therapeutic orders despite the alienating parent’s strongly voiced objections to counselling or therapy (see L. (J.K.) v. S. (N.C.), McClintock v. Karam, C. (W.) v. E. (C.), Spencer v. Beier and Hazelton v. Forchuk).  Courts may also resort to “strong judicial recommendations” (without making an order) that the custodial or favoured parent engage in therapy and/or ensure a child’s regular and meaningful participation in same, failing which a change in custody will be considered.

Since children are not parties to the family law proceeding, courts do not have the power to make orders compelling them to engage in therapy or counselling.  However, courts can order parents, as custodians of their children, to ensure their timely attendance therein.  As stated in C. (W.) v. E. (C.), children do not always get to do whatever they want, nor do they always get to refuse to do things that they are otherwise required to do (see also Snider v. Laszlo, and McClintock v. Karam).

This being said, the older a child is, the less likely that he will meaningfully engage in a therapeutic process that is imposed upon him despite his clearly voiced refusal to do so.  When an older or more mature child is strongly objecting to a therapeutic process, it may be inappropriate to make the therapeutic order.  Such was the court’s conclusion in Sine v. Bannister (16 year old), in Karwal v. Karwal (17 year old), and in Mattina v. Mattina, 2017 ONSC 5704 (CanLII), affirmed at 2018 ONCA 641 (CanLII) (17, 16 and 10 year olds).

I am of the view that in ascertaining a child’s willingness to engage in a therapeutic process, the court should consider the following:

a.     How old is the child?

b.    Is there clear evidence about the child’s willingness/unwillingness to engage (or re-engage) in counselling?  (courts should be cautious when the only evidence of a child’s alleged strong resistance to therapy comes from the “favoured” parent)

c.    Are there ways in which a court could convince an older child to cooperate? (By involving a child’s counsel?  By offering an opportunity to meet with the judge? By any other means?)

If the court does exercise its discretion to make a therapeutic order, the therapist tasked with providing the service should be clearly identified or, alternatively, a judicially supervised process for the identification and appointment of such therapist should be clearly set out in the order.  There should also be close judicial monitoring of the parties’ ongoing compliance with the therapeutic order to ensure regular and meaningful participation by all parties involved.

With the greatest of respect for those who hold a different view, I am of the view that family courts do have an obligation – and a responsibility – to sometimes monitor such petty things as parties’ adherence to a therapeutic schedule.  That responsibility lies upon the court as a result of its duty to promote the best interests, protection and well-being of children.

The recognition that family litigants often need additional resources, assistance and judicial persuasion to settle their disputes was acknowledged and recognized by the codification of active case management in our Family Law Rules.  Court orders in family law cases, particularly those involving children, often fall on deaf ears when the case involves highly conflictual parents who have failed to put their children’s well-being above their dysfunctional relationships with each other.  The court has a duty to ensure that orders are promptly complied with and must be in a position to take swift actions if they are not, failing which children will undoubtedly suffer (excellent examples of such orders can be found in Berhanu v. Awanis, N.H. v. J.H., C. (W.) v. E. (C.), S.D.M. v. P.M., and Rea v. Rea).”

Leelaranta v. Leelaratna, 2018 ONSC 5983 (CanLII) at 72-81

“To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson [v. The Chartered Professional Accounts of Ontario, 2016 ONCA 806)], at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.”

            Bell v. Fishka, 2022 ONCA 683 (CanLII) at 13

“Clear direction was provided today to counsel for the Respondent as to what is required.

This court emphasized that just because counsel or opposing counsel may have previously filed voluminous materials, single spaced, fonts reduced, and with improper attachments – this does not mean that you can do so as a matter of practice or ought to do so at all.

Simply put, it is bad practice.

To then say ‘well I did it last month Your Honour’ is simply not an adequate explanation from an Officer of this Court.

Briefs are not supposed to be long. The word brief means brief. As Justice MacLeod-Beliveau was fond of saying, ‘Less is more in pleadings’.

Offers to Settle are not to be attached to Case Conference Briefs.

The list of permitted attachments is clear.

Generally speaking and to confirm by way of example, pages of texts and emails and offers and photos and character letters and screen shots are all examples of improper attachments.

The Practice Directions are not suggestions.  Without leave of the court the staff at the counter are expected by their employer to follow them. Counsel are as well. For the information of the parties and counsel in this case, and as conveyed today orally, the staff frequently bring problematic filings to the attention of the court and the court will permit such filings in the exercise of discretion in appropriate cases and does so often as called for by the individual case.

In situations where filings are chronically problematic, it becomes impossible to bring each and every one to the attention of the court. In such circumstances the situation may arise that strict compliance is the only option for counsel and parties. The relentless need to grant leave and indulgences regarding incorrect and improper filings is not workable nor reasonable.

In particular when counsel are on record, as an Officer of the Court, the expectation of the court is that the Rules and Practice Directions will be followed. Leave and indulgences may be granted when needed, on occasion and not as a matter of course. Mistakes and occasional oversights occur and will be considered by this court as needed and in light of the facts of the case and the nature of the breach.

A chronic pattern of inattention to Rules and Practice Directions will not be ignored by the court and allowed to form a new methodology of court process.”

          Bron v. Thompson, 2022 ONSC 5674 (CanLII) at 4-15

“Rule 31(5) of the Family Law Rules sets out the parameters for the consequences of a contempt finding. They are very broad, and include imprisonment, payment of a fine, paying an amount to a party as a penalty, payment of costs, and doing “anything else the court decides is appropriate”.  Consequently, it is helpful to consider what sanctions have been imposed by other courts in similar circumstances.

Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] O.J. No. 3019 (S.C.J.) outlines some of the factors to be considered, including the primary purpose of preserving the integrity of the administration of justice; denunciation of the conduct; deterrence; proportionality of the sentence to the wrongdoing; similarity of sentences in like circumstances; aggravating and mitigating factors; appropriateness of a fine; and appropriateness of incarceration.

The case of N.H. v. J.H., 2017 ONSC 4867, further outlines these considerations, including that a custodial sentence is not generally imposed for a first finding of contempt: at para. 610.

N.H. also has many similarities factually with this case.  It too involved a first finding of contempt. However, as is the case here, the breaching behaviour had gone on for some time. It was described as “serious and long standing” and had resulted in serious disruption to the relationship with the father (at para. 612). Mackinnon J. described the mother at para. 3 in ways that are similar to Ms. Smart – “[h]er mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations”. One of the children also suffered from a significant anxiety disorder, and as in this case, the mother arranged for counselling for the child without involving the father or seeking his consent, contrary to an order for joint decision making (paras. 577-581). As in this case, the mother relied on the defence of justification and of having made good faith reasonable efforts to have the children see their father, which defence was rejected.  The mother was found to be “not remorseful, rather appeared to be feel [sic] fully justified.” The experienced judge held: “She gave me no confidence that in future she would comply with an order she disagrees with”. One significant difference from this case is that the mother was a person of greater financial means.

In these circumstances, the sentence included a penalty component and a component for make-up time, in addition to costs on a full recovery basis. The penalty required the mother to contribute a total of $15, 000 to the RESP the father had set up for the two children. The make-up time extended the father’s time with the children on various occasions. While it was not part of the contempt sentencing order, an order was also made in that case requiring the mother to retain a behavioural therapist “with a view to changing her reactive behaviour”.

In Gagnon v. Martyniuk, [2020] ONCA 708, also a case with similarities to this one, the orders following the penalty hearing included an order that the mother comply with the order in respect of the father’s parenting time and that she enroll in a session for co-operative parenting. A fine was ordered to be paid to the father for each occasion that the mother missed one of the parenting program sessions or was late. The motion judge further indicated that the breach of those orders that lead to a second finding of contempt “shall result in further fines, or a period of incarceration, or both”.

The Court of Appeal held that this penalty was not improper and said the motion judge “demonstrated great restraint in penalizing the appellant’s flagrant contempt”: at paras. 23-26. It found nothing in the fine aspect of the order could be considered contrary to the best interests of the children: at para. 25. The court further held that the order that the mother comply with the order regarding the father’s parenting time was in the children’s best interests since it sought to prevent future disputes over parenting time.”

            Smart v. Belland, 2022 ONSC 5612 (CanLII) at 8-14

“An Arbitrator has an obligation to treat the parties fairly and equally under s.19 of the Arbitration Act.

In his Notice of Appeal, the father asserts that the Arbitrator was biased towards him which, in turn, resulted in a substantial miscarriage of justice. The father further states that he was unable to fully present his case, and that the Arbitrator erred in law by considering aspects of the mother’s evidence which the father perceives to have been irrelevant and inflammatory.

The test for a reasonable apprehension of bias is as follows. Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly, see Read v. Alto Properties Inc., 2019 ONSC 1451at para 33.

            Khan v. Khan, 2021 ONSC 8580 (CanLII) at 23-25

“The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4) [emphasis in original]. The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in in P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.” (See also Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children’s Aid Society of Toronto v. S.A.C., 2005 CanLII 43289 (ON SC), [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).

Finally, as the court stated in Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112: “the court owes a special duty to ensure that the safety and well-being of children are protected.  As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.””

N.P.B. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 5774 (CanLII) at 5-9

“As this court stated recently in Krebs v. Cote, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, “[p]arties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.”

To this end, under Ontario law, there is a high bar to set aside a domestic contract that complies with the enforceability requirements of s. 55(1) of the FLA: namely, that it is made in writing, signed by the parties and witnessed.”

            Li v. Li, 2021 ONCA 669 (CanLII) at 46-47

“Section 7 of the Guidelines defines “special or extraordinary expenses”.  The relevant portions of the section provide:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

…

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

In Titova v. Titov, 2012 ONCA 864, at para. 23, Rouleau J.A. set out the correct approach to be taken by a court under s. 7:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

No issue has been raised by Ms. Craig with Mr. Niro’s position that the parties’ pro rata shares should be the same as those set out in the July 2019 order or that anything other than the incomes upon which the October 2020 order was based should be used to decide the s. 7 issues.

Rather, Ms. Craig submits that neither the son’s moving expenses nor the daughter’s hockey expenses are extraordinary. With respect to the son’s expenses, however, this is irrelevant. As s. 7 itself and the excerpt set out above make clear, there is no requirement that post-secondary education expenses be extraordinary. Nonetheless, to qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In my view, that can only be true where the expense in question is not one that would otherwise have been incurred.

On this basis, I have no difficulty concluding that the expenses associated with the purchase of furniture, appliances, food, toiletries and even “shower flip flops” are all properly characterized as post-secondary education expenses for a temporary residence being shared with someone else while at university. The same can be said for the cost of a hotel room for a night or two while a student’s belongings are being moved into a temporary residence and for restaurant meals while this is being done.”

            Craig v. Niro, 2022 ONSC 5178 (CanLII) at 21-25

“Provincial fraud provisions are remedial in nature and their purpose is to ensure that creditors may set aside a broad range of transactions involving a broad range of property interests, where such transactions were effected for the purposes of defeating the legitimate claims of creditors (Ramgotra (Trustee of) v. North American Life Assurance Co., 1996 CanLII 219 (SCC), [1996] 1 S.C.R. 325, at para. 59).

The relevant legislative provisions applicable to Ms. Van Westerop’s motion for relief are found in the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and more specifically in sections 1 to 4:

Definitions

1. 1. 1. 1. 1. In this Act,

“conveyance” includes gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise;

“personal property” includes goods, chattels, effects, bills, bonds, notes and securities, and shares, dividends, premiums and bonuses in a bank, company or corporation, and any interest therein;

“real property” includes lands, tenements, hereditaments and any estate or interest therein.

Where conveyances void as against creditors

1. 1. 1. 1. 2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

Where s. 2 does not apply

1. 1. 1. 1. 3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section.

Where s. 2 applies

1. 1. 1. 1. 4. Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser.

Were the transfers of Mr. Van Westerop’s ownership interests in Policies no. 159-7, 670-3 and 579-5 fraudulent conveyances?

The cash surrender value in each of the three policies owned by Mr. Van Westerop on the lives of his children (“the children’s policies”) is personal property as defined by s. 1 of the Act.  The transfer of each of these policies by Mr. Van Westerop to each of his children was a conveyance as defined in s. 1 of the Act.  No consideration was paid by any of the children, who were fully aware, at the time they received ownership of these policies, that their mother was seeking to enforce her judgements against them.”

Van Westerop v. Van Westerop et al., 2022 ONSC 5406 (CanLII) at 27-29