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“Heather’s counsel argues that this termination (even if bona fide) is irrelevant because Jay has significant sources of unexplained income outside of his employment.  She seeks to impute income to Jay based upon section 19(1) of the Federal Child Support Guidelines, SOR/97-175.

The imputation of income requires a rational and solid evidentiary foundation grounded in fairness and reasonableness: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, at para. 44.

Where there are significant discrepancies in the payor’s evidence, the onus is on the payor to provide an explanation: see Abbas v. Albohamra, 2020 ONSC 591 where the court stated, at para. 52:

In reviewing the evidence, I agree with the trial judge there was a significant discrepancy between Mr. Abbas’ declared income, his lifestyle and his expenditures. When such a discrepancy is present, the onus is on the individual purporting their income to be a certain amount to explain that difference.

Heather says that Jay’s main source of income is cash from undisclosed sources. She says that he would give her stacks of cash to pay her expenses. She describes a lavish lifestyle which included expensive trips where they flew business class and stayed in 5 star hotels.

Heather has done a comprehensive lifestyle analysis of Jay’s spending which shows that Jay’s average net spending is $346,860. When this is grossed up this equates to gross income of $663,000.

Heather relies upon the following cases where courts have held that it is appropriate to gross up net spending when calculating income for the purposes of spousal support: Adams v. Campbell, 2003 CarswellOnt 3276 at 79; Gonabady-Namadon at paras 22-25 and 40-44; Hayward v. Hayward, 2015 ONCJ 212, at para. 27; and Li v. Wong at paras 3-7.

This lifestyle analysis was based upon: a) Jay’s average monthly spending on his American Express, BMO Mastercard and TD Visa in 2020 which totaled $177,900; b) actual expenses for the Portland Condo according to his budget; c) his claimed monthly costs not included in his credit card spending; d) his Lamborghini and Audi down payment and lease payments; and e) cash which Heather says he gave her after separation for a Range Rover lease payments and a nanny.

Heather says this analysis is conservative because it does not include any other spending reflected in his bank account debits and many cash expenses which she did not have receipts for, payments for the condo where he currently resides, and unexplained large deposits in his account.

Counsel for Jay argued that Heather’s lifestyle analysis was inadequate because it was based upon charts prepared from disclosure which Jay provided, but the actual credit card statements are not before me. If Jay had wished to challenge these charts as not being accurate calculations based upon the disclosure which he provided, he could have done so with his own analysis and charts.

Having declined to address Heather’s lifestyle analysis with his own evidence on these calculations, or his own analysis, I am not persuaded by Jay’s argument as to the sufficiency of Heather’s evidence on these issues.”

         McArthur v. Le, 2022 ONSC 2110 (CanLII) at 13-22

“For a constructive trust remedy to be imposed, Ms. Yao is required to show unjust enrichment.  In Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4^th) 621 (S.C.C.) the Supreme Court of Canada determined that there are three elements that must be proven on a balance of probabilities in order for a party to succeed in an unjust enrichment claim:  (a) an enrichment; (b) a corresponding deprivation; and (c) the absence of juristic reason for the enrichment (at. Page 630).

The leading case by the Supreme Court dealing with unjust enrichment and joint family venture is Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.  The Supreme Court stated, at para. 88, that “[a] joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.”  At paragraph 100, Justice Cromwell sets out the court’s analysis of the remedies for unjust enrichment:

a.    The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b.    Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.

c.    To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

d.     Whether there 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.

In order for unjust enrichment to be established, the plaintiff must “demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property” (Kerr, para. 50).  The plaintiff must show a “’sufficiently substantial and direct’ link, a ‘causal connection’ or a ‘nexus’ between the plaintiff’s contributions and the property which is the subject matter of the trust” (Kerr, at para. 51).  Further, in Kerr, at para. 51, the Supreme Court noted that indirect monetary contributions and direct labour contributions may be sufficient, “provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property.””

         Auciello v. Yao, 2022 ONSC 2374 (CanLII) at 41-43

“Rule 24(1) of the Family Law Rules sets out the basic assumption that a successful party is entitled to costs.  Success can be most easily measured by comparing the result obtained (final order) with the result sought (pleadings) and the offer to settle.”

Benoit v. Kerr, 2014 ONSC 5401 (CanLII) at 18

“In Johanson v. Hinde, 2016 ONCA 430 (CanLII), at para. 1, this court recently emphasized the deferential standard of review owed to factual findings of trial judges in family litigation:

The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges’ appreciation of the facts. If anything, this is more accentuated in family litigation.

Deference was also emphasized in Hersey v. Hersey, 2016 ONCA 494 (CanLII), at para. 12:

Absent an error in principle, a material misapprehension of evidence or an award that is clearly wrong, this court must not overturn a support order because it might have reached a different result or balanced factors differently.

…

The appellant argues that the remedy ordered – termination of support – is unnecessarily harsh. There were other, more appropriate, alternatives open to the motion judge, such as imputing to the appellant the income that she ought to have earned had she returned to the workforce, and reducing ongoing support accordingly. It would have been more appropriate, she argues, to impute income because there is no evidence that she could have become self-sufficient (in the sense that she could have achieved the standard of living enjoyed by the parties at the date of separation) even if she had made reasonable efforts to do so.

The appellant concedes that where there is a lack of effort to achieve self-sufficiency, it can be appropriate to reduce support to incentivize a recipient to make appropriate efforts towards self-sufficiency: Juvatopolos v. Juvatopolos (2004), 2004 CanLII 34843 (ON SC), 9 R.F.L. (6th) 147 (Ont. S.C.), at para. 27, aff’d (2005), 2005 CanLII 35677 (ON CA), 19 R.F.L. (6th) 76 (Ont. C.A.). But she argues that it is too late in the day for her. She is not now capable of supporting herself at the standard of living the family enjoyed during the marriage, no matter what the incentive.

The respondent argues that the motion judge found that to the extent the appellant may suffer financial hardship as a result of termination of support, this is not the result of the marriage or its breakdown, but of her own improvident choices.

The motion judge considered that the appellant is not without significant resources, notwithstanding that the respondent has amassed considerably more. But the motion judge found that the mere fact that there is a disparity between the resources of the appellant and the resources of the respondent does not, in the circumstances of these parties, supply a juristic reason to continue support. I agree that the result appears harsh, given the resources available to the respondent. But the motion judge was entitled to make the order that he did, and there is no basis on which we should interfere with it.”

         Choquette v. Choquette, 2019 ONCA 306 (CanLII) at 15 & 26-29

“Incomplete documentation about the status of the mother’s partner’s criminal charges was initially placed before the Court.  Pursuant to section 24(3)(k) of the Children’s Law Reform Act, any civil or criminal proceeding, order, condition or measure that is relevant to  the safety, security and well-being of the child is a factor related to the child(ren)’s circumstances that the Court is to consider.  Furthermore, pursuant to section 33.3(2) of the Children’s Law Reform Act, the Court has a duty to consider if “a child protection order, proceeding, agreement or measure” and “an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature” are “pending or in effect in relation to any party to a proceeding under this Part”.  Pursuant to section 33(3), to carry out its duty, the Court may make inquiries of the parties or review information that is readily available and that has been obtained through a lawful search.

Although documentation detailing the mother’s partner’s criminal matter is not strictly about the mother, it is clearly relevant and important to the Orders I am being asked to make, and to the children’s best interests.  Section 33.3(1) of the Children’s Law Reform Act states that the purpose of section 33.3, is to facilitate “the identification of orders, undertakings, recognizances, agreements or measures that may conflict with a parenting order” and to facilitate “the co-ordination of proceedings”.  With that purpose in mind, I read the words “in relation to any party to a proceeding under this Part” in section 33.3(2) to be sufficiently broad as to include the mother’s partner.  He is residing with the mother, who is a party, and he is having contact with the children.”

            B.R.M. v. M.A.E.M., 2021 ONSC 2791 (CanLII) at 83-84

“The 2021 amendments to the Divorce Act and the Children’s Law Reform Act introduced new provisions for parenting plans. The goal of a modern parenting plan is to craft a child centred schedule, an approach that has been extensively researched and advanced within the AFCC Parenting Guidelines. In the past, the use of a detailed parenting schedule was generally limited to the most difficult parenting relationships: those in which multidirectional Orders were necessary to remove as much discretion – and therefore potential conflict – as possible. The modern approach to parenting plans is to move beyond the baseline of conflict reduction and as much as practical, to map out the best childhood possible for children growing up in two (or more) homes.

The AFCC Parenting Guidelines were prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) to assist parents and their professional advisors in specifically developing the best, child-focused, and realistic parenting plans. As set out in its preamble,

         This Guide combines knowledge gained from developmental research on the impact of parental separation and divorce on children, with practical insights about the needs of children with parents living apart.  This Guide is intended to be used in conjunction with the AFCC-Ontario Parenting Plan Template, which offers suggestions for specific clauses that can be used or adapted for a parenting plan.

I agree with Justice Chappel in McBennett v. Davis 2021 ONSC 3610 when she states in paragraph [92] that:

         “The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”

And as further stated by Justice Kraft in H. v. A., 2022 ONSC 1560:

          The parenting plan guide produced by the Association of Family and Conciliation Courts – Ontario (“AFCC-O”) has been found by many courts to be of great assistance in determining parenting schedules that are in a child’s best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation.

There are two suggestions within the AFCC Parenting Guidelines for young children that I find to be useful within this decision:  that transitions occur at a neutral location such as a daycare or school (to which the parents have already agreed), and that the number of transitions for a child be minimized while ensuring that she is able to spend as much time with each parent as is in her best interests.

Transitions are stressful for children. There is a change in expectations and relationships every time that a child moves from one home to another. There are few, if any constant objects. Some of the child’s belongings or a favourite activity or a pet will be left behind. Each transition requires an adjustment, the length and quality of which will depend on the child’s individual temperament, the stability of the pattern of care and the demonstrated empathy of her parents. Should the parenting schedule be uneven, or not allow enough time for adjustment before the next transition, a child may never truly settle in either home, or perhaps, even be fully present.”

            Melbourne v. Melbourne, 2022 ONSC 2299 (CanLII) at 18-23

“Should the court make a temporary order which would implement some of the recommendations made by an assessor in her parenting assessment or defer consideration of those recommendations until trial?  The question arises in the context of parenting problems that have attracted eleven contacts by the Children’s Aid Society and thirteen by local police services since the parents separated in September 2019.

…

This court has recently reviewed the law on the use of an assessment on a motion before trial. In J.D. v. N.D., 2020 ONSC 7965 the court stated at paras 17 to 19, 21 to 23:

[17]           The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v Genovesi, 1992 CanLII 8562 (ON SC), [1992] O.J. No. 1261. While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (child significantly impacted by parents’ inability to make timely decisions for child’s mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (S.C.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved.  In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:

[23]         …  In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.  In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi.  …

[27]       It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo.  Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

[18]           The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:

a.   How significant is the change that is being proposed as compared to the interim status quo?

b.   What other evidence is before the court to support the change?

c.   Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

d.   Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

[19]    Other decisions agreeing with Bos include Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951; and Calabrese v. Calabrese, 2016 ONSC 3077.

                                ….

[21]           The mother accurately submits that there are many factual disputes between the parties reflected in the assessment.  The question for the motion court ought not to be whether it can determine all the factual disputes between the parties, but whether it can determine essential facts showing whether or not a temporary change in the children’s living arrangements is in their best interests.

[22]           Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner can be the better option. Courts have found this to be true in parental alienation cases. In Hazelton v. Forchuk, 2017 ONSC 2282 (CanLII) the court said:

[75]     However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately.  If they are not, the situation will only get worse.  If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue.  At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

See also Ma. M. v. A.W.M., 2019 ONSC 2128 (CanLII) where a finding of alienation was made at the interim stage and residential changes were made to address it.

[23]       In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and / or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial.  A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.

In Matsinda v. Batsinda, 2013 ONSC 7689, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:

32 The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties, and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 CarswellOnt 7442 (Ont. S.C.J.)”

            Jonczyk v. Tilsley, 2021 ONSC 2546 (CanLII) at 1, 10-11

“The Court of Appeal in Kaplanis held that carrying out an order for counselling requires the co-operation of the parents and, where the parents cannot agree on counselling, it is an error to order that they must nevertheless attend counselling and appoint a counsellor to resolve their dispute.”

Barrett v. Huver, 2018 ONSC 2322 (CanLII) at 47

“The court is reluctant to interfere in a situation where the parties have purported to conclusively settle their financial issues: see Quinn v. Epstein Cole LLP, 2008 ONCA 662, 92 O.R. (3d) 1 at paras. 3-4. In this case, the parties’ Agreement specifically states in para. 7 that it is “in full and final satisfaction” of all outstanding claims between the parties, and acknowledges in para. 10.10 that the appellant and respondent “have sufficiently disclosed their income, assets and other liabilities existing at separation and the date of this Agreement”. In these circumstances, even if there was non-disclosure it was not material.”

         Tozer v. Tassone, 2019 ONCA 285 (CanLII) at 9

“In Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at paras. 46-49, the Ontario Court of Appeal stated:

46      The words “consent” and “acquiescence” as used in Article 13(a) of the Hague Convention should, in my view, be given their ordinary meaning so that they will be consistently interpreted by courts of Hague Convention contracting states. In any case, I can see no logical reason not to give those words their plain, ordinary meaning.

47      “Consent” and “acquiescence” are related words. “To consent” is to agree to something, such as the removal of children from their habitual residence. “To acquiesce” is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.

48      Subject to this observation, I agree with Lord Brown-Wilkinson’s approach and analysis in H (Minors), Re. When Lord Brown-Wilkinson said that “[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world’s perception of his intentions”, he was, it seems to me, really speaking of the wronged parent’s consent to a child’s removal or retention based on evidence falling short of actual stated consent. That is what acquiescence is — subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child’s removal or retention.

49      To establish acquiescence in the Article 13(a) Hague Convention context — “subsequently acquiesced in the removal or retention” — the mother must show some conduct of the father which is inconsistent with the summary return of the children to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence. In my opinion, the evidence on which the mother relies does not meet that test.”

            Harper v. Smith, 2021 ONSC 2504 (CanLII) at 77