Category: Uncategorized

“The law on the equalization of net family property begins with sections 4 and 5 of the Family Law Act, R.S.O. 1990, c. F.3, which provide the framework for settling property issues between married persons.  The steps involved in this framework were summarized by Justice Barnes in Perri v. Perri, 2016 ONSC 5833 at para. 90:

Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:

• • • • • • What property did each spouse own on valuation day?
          • What is the value of that property after making deductions and allowing exemptions permitted under section 4?

Step 2: Determine whether one spouse’s net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3

Step 3: Before making an order under Step 2, the court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6)”

            Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 28

“The intent of s. 5(6) of the Family Law Act “is not to alleviate every situation that may be viewed as in some ways unfair or inequitable”: Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25.  As the Court of Appeal stated in Ward, at para. 25:

Equal sharing should occur in most cases. The Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims.

…

The next issue for me to determine is whether equalization of the parties’ net family properties is unconscionable, having regard to these circumstances.  Matrimonial misconduct is not a factor justifying a variation of shares under s.5(6) of the Family Law Act.  The fact that Mr. Bandyopadhyay committed adultery is irrelevant to the analysis.  But fault-based conduct relating directly to the parties’ net family properties (e.g. diverting or depleting assets, disposing of property or acquiring debt) is a relevant consideration.

The threshold of unconscionability is high: Ward, at para. 33. It is not sufficient for equalization to be merely unfair or inequitable. There must be circumstances that shock the conscience of the court; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.”

Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (CanLII) at 104, 119-120

“I adopt the reasoning of Lemon, J. in Kraemer v. Kraemer 2019 ONSC 944 and Akbarali, J. in Laurent v. Laurent, 2019 ONSC 3535 (S.C.J.), citing Menage and Conway v. Conway (2005), 2005 CanLII 14136 (ON SC), 16 R.F.L. (6th) 23 (Ont. S.C.): Parties have the onus to provide credible, authentic evidence of the accurate value of their assets and liabilities on the date of marriage and the date of separation. While disclosure must be relevant and proportional, where the value cannot be readily determined or there is serious dispute, an independent valuation may be required.”

            Witkin v. Storm, 2022 ONSC 6221 (CanLII) at 17

“Changing a child’s name is not a mere administrative act. See: Herniman v. Woltz, 1996 CanLII 8087 (ON SC), [1996] O.J. No. 1083 (Ont. Gen. Div.). A child’s surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court); Belisle v. Poole (1994), 2 R.F.L. (4^th) 165 (Ont. Gen. Div.).

The court should be mindful of the parties’ agreement about what to name a child at birth. See: Hill v. Shimla, supra.

The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests. These factors include:

a)  Whether the proposed name change will exclude the name of the non-custodial parent. 

b)  The length of time a custodial parent has had sole custody of the child.

c)  Whether there is a continuing close relationship between the child and the non-custodial parent.

 d)  Whether there would be any serious effect on the non-custodial parent.

 e)  Whether either parent has displayed any malice or improper motivation.

 f)  The age of the child and the weight to be given to the child’s wishes, in light of that age.

 g)  The length of time the child has had its name.

 h)  The surnames of any siblings.

See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery (1989), 1989 CanLII 7405 (MB QB), 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.”

Hermanson v. Kiarie, 2017 ONCJ 598 (CanLII) at 20-22

“Rule 25(19) of the Family Law Rules O. Reg. 114/99 reads as follows:

The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

The definition of “change” is broad and provides the judge with the jurisdiction to set aside an order made by a judge of the same court. This broad interpretation is consistent with Rule 2 of the Family Law Rules that requires the court to deal with cases justly and recognizes that family law proceedings are different than other judicial proceedings: Gray v. Gray, 2017 ONCA 100.

It is the father’s onus to demonstrate on the balance of probabilities that the mother committed fraud on the court at the uncontested trial. The fraudulent acts must be material and go to the foundation of the case: Dodge v. Dodge, 2007 CanLII 80075 (ON SC), 2007 CarswellOnt 6477 at para. 57.

The Court of Appeal listed five factors the court should consider in determining whether to set aside a default judgment in Mountain View Farms, Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 as follows:

1. 1. 1. 1. Whether the motion was brought promptly after the defendant learned of the default judgment
         2. Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules
         3. Whether the facts establish that the defendant has an arguable defence on the merits
         4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed
         5. The effect of any order the motion judge may make on the overall integrity of the administration of justice

“These factors are not to be treated as rigid rules”: Mountain, at para 50. The court must determine whether it is just to relieve the father from the consequences of his default based on the circumstances in this case.”

            Saeed v. Khalid, 2022 ONSC 5012 (CanLII) at 14-18

“Given that B.K.’s therapeutic relationship with Ms. Shapiro lasted only one session, the Respondent submits that their therapeutic relationship should attract a lesser expectation of privacy under the Wigmore test than longer or more established relationships.  No authority was cited for this proposition.  Respectfully, I am not persuaded by this reasoning.  B.K. required therapy and attended a session with Ms. Shapiro to improve her health and wellness.  I see no basis to find that B.K. reasonably expected that her private thoughts and feelings shared in therapy would later be disclosed.  In my view, B.K.’s therapeutic relationship with Ms. Shapiro was clearly private and confidential regardless of its length or duration.

Therapy is extremely important, particularly for children coping with dysfunction caused by family conflict.  On this point, I share the view expressed by Boswell J. in L.H. at paras 30-31 that public interest strongly supports the protection and fostering of therapeutic relationships to help children attend therapy to address their mental health.  It is generally understood that children in high conflict family situations who go untreated may well suffer mental health issues that may last a lifetime.  Without privacy and confidentiality, children may be less likely to try counselling or therapy, let alone speak openly and candidly about their thoughts and feelings during therapy to properly benefit from therapeutic treatment.  Indeed, B.K. herself has candidly acknowledged that she has begun to modify her behaviour to be less open and forthcoming in therapy for fear that her private thoughts and feelings may be revealed by a disclosure order.  A failure to uphold the private and confidential nature of therapy may well cause a serious chilling effect for B.K.’s future therapeutic treatment and potentially cause her therapy to become ineffective.”

            G.L.K. v. C.L.K., 2021 ONSC 5843 (CanLII) at 90-91

“Income may be imputed to a payor who is incarcerated as a result of their own unlawful conduct: Khentov v. Bieler, 2007 CarswellOnt 1832, Cran v. Huynh 2008 NWTSC 69, Billingsley v. Billingsley, 2010 ONSC 3381, Zapreff v. Zegarac, 2015 ONCJ 243, S.H. v. R.A.A., 2016 ONCJ 255.”

            Hohmeier v. Caputo, 2022 ONSC 4925 (CanLII) at 19(o)

“Section 94(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, states:

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

AND

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

AND

(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

At a temporary care and custody hearing, the onus is on the Society to establish on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondent, it is more probable than not that he or she will suffer harm.  The onus is on the Society to establish the child cannot be adequately protected by terms and conditions of an interim supervision order: see CAS v L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8th) 48, at para 32.

A court must choose the order that is the least disruptive placement consistent with adequate protection of the child. The degree of intrusiveness of the Society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk.  The Act gives priority to the person who had charge of the child prior to Society intervention: see CAS v L.L. and J.G., 2019 ONSC 853, 20 R.F.L (8th) 48, at para 32.”

Halton Children’s Aid Society v. M.A.R., 2022 ONCJ 420 (CanLII) at 72-74

“In Cameron, I considered the right of a spouse in a relationship that closely approached the SSAG 20 year definition of long-term marriage, to share in any post-separation increases in income of their spouse. I wrote:

66      Professors Rogerson and Thompson, writing in the SSAG, tie the claim to post- separation increases in income to “some rough notion of causation”. They write at para. 14.3:

Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).

67      In the RUG [SSAG Revised User’s Guide], Professors Rogerson and Thompson make clear that “some rough notion of causation” is not to be taken as requiring a clear line of causation between the relationship and the income increase. They state:

It would be better to describe it as a “link” or “connection”, between the marriage and the increase after separation. That has certainly been the approach of most courts, especially those in B.C. and Ontario.

68      Professors Rogerson and Thompson add that, strictly speaking, a finding of compensatory entitlement is not a prerequisite to a spouse sharing in post-separation income increases, particularly in long-term marriages. They say:

The basis of entitlement has a significant impact upon the degree of sharing of increases, with compensatory claims more likely to result in sharing than non-compensatory claims, but not exclusively so. There can be sharing — partial, or even full — in non-compensatory cases too, especially after long marriages.

69      The authors add that practically speaking, cases regarding post-separation income increases are “complex … involving a mix of facts and legal factors, with a strong discretionary element to the final judgment.””

            Jamieson v. Jamieson, 2020 ONSC 5173 (CanLII) at 11

“Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, provides that a testator may make a valid will, wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

In Bennett v. Gray, 1958 CanLII 49 (SCC), [1958] S.C.R. 392, the Supreme Court of Canada said that to be a valid holographic will, the person propounding the document must satisfy the court that it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death” and that the propounder may rely on extrinsic evidence:

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature. (Bennett, at p. 396.)

Not every note written in hand before death will be found to be a will. It is necessary that the testator intends the document to be a testamentary document. According to Feeney’s Canadian Law of Wills (4^th Edition) at p. 1.4, para. 1.7, “[a] testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then—the gift is said to be “dependent on death for its vigour and effect.’” (Atherton Estate, Re, 2006 CanLII 30580 (Ont. S.C.), at paras. 11-12.)”

            McKenzie v. Hill, 2022 ONSC 4881 (CanLII) at 22-24