Category: Uncategorized

“Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time.   In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship.  In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.  Subject to these caveats, the relevant principles and considerations that emerge from the case-law can be summarized as follows:

1. 1. 1. 1. 1. There are two aspects to spouses living separate and apart.  First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell; Greaves).
            2. To live “apart” requires a physical separation between the parties (Oswell, at para. 13).   This means that the parties cannot be cohabiting in a conjugal relationship (Greaves).  However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart.   Spouses can be living separate and apart under the same roof.  The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence (Oswell, at para. 12; Greaves, at para. 34; Neufeld, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16 (CanLII)(C.A.), at para. 20).
            3. By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart.   As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart.  The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14).   Another circumstance which may be relevant in this situation is whether the parties have kept personal items at each other’s residences (Rosseter). The implications of maintaining more than one residence are discussed in greater detail below in the discussion about “cohabitation.”
            4. In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell,at para. 14; Greaves, at para. 34).  The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, (C.A.), at para. 11; Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).
            5. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.), 2016 CarswellBC 1975 (S.C.), at para. 40); Nearing v. Sauer, 2015 BCSC 58 (CanLII)(S.C.), at para. 54).   As McDermot J. stated in O’Brien v. O’Brien, 2013 ONSC 5750 (CanLII) (S.C.J.), at para. 50:

Unlike the decision to marry, the decision to separate is not a mutual one.  It is a decision which is often made by one party over the objections of the other.  Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it.

1. 1. 1. 1. 6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to the determination of whether parties are living separate and apart (O’Brien, at para. 52; S.A.H. v. I.B.L., 2018 BCSC 544 (CanLII)(S.C.), at para. 17).  However, the intention to separate need not be unambiguously relayed to the other spouse by way of a verbal expression of settled intention.  In the context of both common law relationships and married couples, the courts have held that a relationship has come to an end when either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one (Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at para. 432;  Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.) (CanLII), at para. 42;  S.(H.S.), v. D.(S.H.), at para. 43;  Naegels v. Robillard, 2019 ONSC 2662 (CanLII) (S.C.J.), at para. 37).
            7. In assessing whether there is an intention on the part of one or both parties to live separate and apart from the other, the court must strive to determine their true intent and not simply their stated intent at the time of hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 7272 (CanLII)(S.C.J), at para. 47).
            8. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal (Nearing, at para. 59).
            9. The degree to which the parties were intimate with each other is a relevant consideration (Oswell, at para. 15; Rosseter, at para. 38; Anthony v. Anthony, 2019 ONSC 650 (CanLII)(S.C.J.), at para. 42).  However, the absence of sexual relations is not a conclusive indicator that the parties are living separate and apart (Newman v. Newman, 1970 CarswellOnt 123 (C.A.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.); Oswell, at para. 15). Similarly, the fact that the parties have engaged in sexual relations is not determinative of whether they remain separate and apart or have reconciled.  Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasional incidents of sexual intimacy and discussions of reconciliation (Greaves, at para. 36;  S.(K.L.), at para. 23;  Wells. v. King, 2015 NSSC 232 (CanLII) (S.C.), at para. 23).   However, the presence of sexual relations while the parties are still physically living with each other will be a strong indicator that they continue to cohabit in a conjugal relationship (Tokaji v. Tokaji, 2016 ONSC 7993 (CanLII) (S.C.J.), at para. 26).
            10. Whether the parties have been involved romantically with other people (Rosseter, at para. 39).  However, the fact that they have had relationships with other people is not determinative either, particularly if the other party was unaware of the other relations (Neufeld, at para. 75).
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues (Greaves, at para. 34; Cooper, at para. 12; Oswell, at para. 16).
            12. Have there have been any changes in expectations regarding their accountability to each other for daily activities? (Oswell, at para. 37).
            13. The extent and nature of their contact with each other, including whether they have continued to participate in joint social activities (Cooper at para. 15; Oswell, at para. 16; Greaves, at para. 34; Torosantucci;  Rosseter, at para. 26;  Anthony, at para. 42).  In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility” (Torosantucci; Daley v. Gowan, 2015 ONSC 6741 (CanLII)(S.C.J.), at para. 66).
            14. Whether the parties spent vacations together (Oswell, at para. 26; Rosseter, at para. 34; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J); Neufeld, at para. 75; Anthony, at para. 42).
            15. Attendances by both parties with their children for family events, activities and even family vacations is relevant but not determinative, as these may simply reflect the parties’ efforts to co-parent in the best interests of the children post-separation (Volcko v. Volcko, 2015 NSCA 11 (CanLII), at para. 10-11;  Neufeld, at para. 75(j)).
            16. Have the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores? (Cooper, at paras. 13 and 14; Oswell, at paras. 16 and 17; Rosseter, at para. 20; Henderson; Anthony, at para. 42).
            17. Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29)
            18. Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, at para. 75).
            19. Whether they have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues (Rosseter, at para. 31; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J)).
            20. How the parties referred to each other and held out their relationship to third parties (Anthony, at para. 42; R.(T.) v. K.(A.), at para. 46).
            21. Documentary evidence respecting their relationship status is also relevant. For example, the manner in which the parties described their status in important documents, including Income Tax Returns, and whether they have claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 13; Oswell, at para. 18; Greaves, at para. 34;  Joanis v. Bourque, 2016 ONSC 6505 (CanLII)(S.C.J.), at para 25;  Rosseter, at para. 47; Henderson, at para. 35;  Tokaji, at para. 25).  Once again, however, these considerations are not determinative, and the court should consider any explanations which either party may proffer before determining the weight, if any, to accord to them (Morin v. Morin, 2011 ONSC 1727 (CanLII) (S.C.J.), at para. 27; Anthony, at para. 42).
            22. If the parties have retained a counsellor or mediator, the purpose for which the mediator was consulted may also be of assistance in determining whether the parties have separated (Oswell, at para. 28).
            23. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings (Newton v. Newton, 1995 CarswellOnt 84 (S.C.J.);  Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42).
            24. Have the parties continued to share the use of assets? (Rosseter, at para. 43).
            25. The parties’ behaviour towards each other in the presence of third parties (Rosseter, at para. 44).
            26. Whether the parties have taken legal steps to legally terminate their relationship and resolve issues relating to their separation (Oswell, at para. 35; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), at para. 53;  Rosseter, at para. 49).  However, this factor is not determinative and may be given little weight if no further steps were taken and other factors point to a continuation of their involvement with each other as a couple (Rosseter, at paras. 49-51).”

Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII) at 26

“In accordance with s. 22(3) of the CLRA, the removal or withholding of a child without the consent of the parent having custody of the child does not alter the habitual residence of the child unless there has been some acquiescence or undue delay in commencing due process by the person from whom the child has been removed or withheld.

Pursuant to Rule 5(1)(b), the wording of that subsection means that the matter should have commenced where the child was ordinarily residing and if the matter was improperly commenced in a particular proceeding, the Court could order a particular proceeding be transferred and does not need to consider a transfer motion pursuant to Rule 5(8) (see Mohr v. Sweeney, 2016 ONSC 2248, paras. 16-17).

Given that the Mother had only moved to her new municipality 6 to 8 days before commencing her motion, it is questionable that the child was ordinarily residing in the Markham area.  There is case law that a recent, unilateral move will generally not be accepted as “ordinarily resides” as defined.  Those three cases are: A.A.B v. A.P.J., 2012 ONCJ 546 at paras. 59-63; Benson v. Forsyth, 2012 ONCJ 304 at paras 15-29; and Sangha v Sangha, 2014 ONSC 4088 at paras 47-48.

The Court is aware that Rule 5(2)(b) allows a motion to be heard elsewhere where there are allegations of danger to the party; however, it is to be transferred back to the usual venue (i.e.: where the child ordinarily resides) unless the court “others otherwise”.  The words “orders otherwise” should be narrowly interpreted, as Rule 5(2) is designed to prevent forum shopping and the parties using self-help to remove the children from the municipality where they ordinarily reside (Van Roon v. Van Roon, 2013 ONCJ 276, at para. 70).”

            Alcine v. Murray, 2018 ONSC 3856 (CanLII) at 28-31

“It is settled law that a lawyer can act against a former client, so long as the lawyer does not breach the duty of confidence.

A lawyer also has a limited duty of loyalty to a former client. In particular, even if no confidential information was provided by a former client, a solicitor retained cannot “subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on” (Consulate Ventures, at para. 26).

Further, a lawyer cannot act take “an adversarial position against the former client with respect to the legal work which the lawyer performed for the former client or a matter central to the earlier retainer” (Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (“Brookville Carriers”), at para. 17.).

Examples of the above instances of a duty of loyalty to former clients are reviewed in detail by Cromwell J.A. (as he then was) in Brookville Carriers. Cromwell J.A. reviewed the example of Credit Suisse First Boston Canada Inc. Re (2004), 2 BLR (4^th) 109 (Ont. Sec. Comm.), in which the law firm was in breach of a duty of loyalty because it had given advice to the Toronto Stock Exchange on the establishment of Market Regulation Services and then acted for Credit Suisse and raised defences that attacked that work and advice (Brookville Carriers, at paras. 43-44).

Similarly, Cromwell J.A. reviewed the decision in Chiefs of Ontario v. Ontario (2003), 63 OR (3d) 355 (SCJ) (“Chiefs of Ontario”), in which the law firm acted for the Chiefs of Ontario against a First Nation on casino revenue matters, alleging deception and bribery, when the law firm had acted for that First Nation with respect to the same casino revenue matters (Brookville Carriers, at para. 45).

The duty of loyalty is based on the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice (Perell (as he then was) in Conflicts of Interest in the Legal Profession (Toronto, Butterworths: 1995), cited at Brookville Carriers, at para. 48). The duty protects “the confidence of every litigant that their legal advisers will not later attack their honour in matters closely related to their confidential retainers” (Chiefs of Ontario, at para. 112; cited at Brookville Carriers, at para. 45).

In Brookville Carriers, Cromwell J.A. engaged in a thorough review of the law. He held that “the scope of this duty [of loyalty] is very limited absent confidential information being at risk”. Crowell J.A. held that (Brookville Carriers, at para. 51):

Under the principle relevant here, that concerning acting against a former client in a related matter, the focus is different. As the cases and commentators show, the scope of this duty is very limited absent confidential information being at risk. This broader continuing duty of loyalty to former clients is based on the need to protect and to promote public confidence in the legal profession and the administration of justice. What is of concern is the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.

Consequently, the scope of a duty of loyalty to former clients is restricted to attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.”

Hogarth v. Hogarth, 2016 ONSC 3875 (CanLII) at 95-102

“Section 17(5) of the Divorce Act requires that the court be satisfied that there has been a change in the circumstances of the child since the last order, before varying a parenting order. Section 2 of the Divorce Act defines a parenting order as an order made under subsection 16.1(1) of the Act. However, the court’s jurisdiction to make interim parenting orders is found in subsection 16(2), thus it opens to question whether the material change test applies to the variation of an interim order.

Neither party made submissions on the legal test to be met.  If a material change is required, it is not sufficient that both parents want the court to intervene, albeit for different reasons. The  Court of Appeal in Persaud v. Garcia-Persaud, 2009 ONCA 782, said even when both parties request a variation, the court must still make an explicit finding that a material change in circumstances has occurred since the previous order was made. The jurisdiction to make a variation order is dependent on it.

The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt.  It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

Neither party made submissions with respect to the material change test. It is not sufficient that they both ask the court to intervene and vary the interim order, albeit for different reasons. In Persaud, the Court of Appeal said even where both parties request a variation, the court must still make an explicit finding that there has been a material change in circumstances since the previous order was made. The jurisdiction to vary is dependent on it.”

            Chyher v. Al Jaboury, 2021 ONSC 4358 (CanLII) at 20-23

“Pursuant to Michel v. Graydon, 2020 SCC 24, child support can be recalculated retroactively even if a child has reached adulthood. In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada interpreted s. 15.1 of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp.), as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage”, as defined in the Divorce Act, when the application is made (para. [2]). After D.B.S., courts grappled with whether the same principle applies to provincial legislative schemes or to variation applications under s. 17 of the Divorce Act. In Michel v. Graydon, supra, the court confirmed that D.B.S. does not stand for the proposition that courts can retroactively vary child support only while the child beneficiary is a “child of the marriage” (at para [15]).”

         Outaleb v. Waithe, 2021 ONSC 4330 (CanLII) at 60

“The court has the authority to order a capacity assessment under s. 79(1) of the SDA [Substitute Decisions Act] which provides:

If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

In addition, the court has jurisdiction to require a party to undergo a mental examination under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.48. However, under s. 105(3) of the Courts of Justice Act, where the question of a party’s mental condition is first raised by another party, an order under s. 105 shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

Under r. 1.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a person is considered to be under a disability if they are mentally incapable within the meaning of ss. 6 or 45 of the SDA in respect of an issue in the proceeding. Under r. 7.01, a proceeding shall be commenced, continued or defended on behalf of a party under a disability by a litigation guardian.

In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, Stinson J. commented on the difference between the definition of disability in the Rules and in the SDA, noting, at para. 19, that r. 7 is designed to protect the integrity of the court’s process, while the focus of the SDA is solely on the protection of the individual. Proceedings under the SDA are not private litigation in the traditional sense. “The interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable”: see also Abrams v. Abrams, 2008 CanLII 67884 (Ont. S.C.J.), at para. 48.

Justice Stinson held that, in a non-SDA proceeding governed by the Rules, the definition of “disability” in r. 1.03(1)(b) should be read along with s. 6 of the SDA to mean that someone will be considered a person under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding: at para. 21.

A person who is 18 years of age or more is presumed to be capable: s. 2(1) SDA. Where capacity is in doubt or challenged, the moving party bears the onus of establishing that a party is a person under a disability: Kagan, Shastri at para. 23.

However, on either a motion to appoint or remove a litigation guardian, a mental examination is not the norm, and should not automatically be ordered under s. 105 of the Courts of Justice Act. As Stinson J. held in Kagan, Shastri at para. 40:

To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

In Abrams, at para. 53, Strathy J., as he then was, considered whether to order a capacity assessment under s. 79 of the SDA, or alternatively, a mental examination under s. 105 of the Courts of Justice Act. He laid out a list of factors to consider and balance to determine whether, in all the circumstances, the public interests and the interests of the party in question require that an assessment take place and justify the intrusion into their privacy. These include:

1. 1. 1. 1. 1. The purpose of the SDA;
            2. The terms of s. 79, that (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable;
            3. The nature and circumstances of the proceedings in which the issue is raised;
            4. The nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
            5. If there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
            6. Whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
            7. Whether the assessment will be necessary in order to decide the issue before the court;
            8. Whether any harm will be done if an assessment does not take place;
            9. Whether there is any urgency to the assessment; and
            10. The wishes of the person sought to be examined, taking into account his or her capacity.”

         Saing v. Saing et al, 2021 ONSC 4287 (CanLII) at 11-18

“The case-law that has addressed the meaning of the phrase “material change in circumstances” in the context of child and spousal support variation proceedings has also established that a change will only be considered “material” if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5 (CanLII), 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249 (CanLII), 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation (Haisman; Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 46 R.F.L. (4^th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)). These principles apply equally to the threshold test in a custody and access variation proceeding.  The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64;  Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.) (CanLII)).  Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application.  As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.)(CanLII), at para. 62, aff’d 2014 ONCA 225 (C.A.) (CanLII), “[p]arents are not perfect and they will make mistakes.  The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

In this case, the Applicant’s position is based largely on allegations that the Respondent has repeatedly breached numerous terms of the April 2, 2007 order.  A party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.) (CanLII);  Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.) (CanLII); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.);  V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.)).

Both parties also base their custody and access claims to a large extent on the conflict that has developed between them since the April 2, 2007 order was made.  The Ontario Court of Appeal has held that incidents of conflict between parties will not meet the threshold material change in circumstances test if the same level of conflict existed between the parties when the existing order was made (Litman v. Sherman, 2008 ONCA 485 (C.A.) (CanLII); Goldman v. Kudelya, 2017 ONCA 300 (C.A.) (CanLII)).  However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made, resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman).”

            Roloson v. Clyde, 2017 ONSC 3642 (CanLII) at 49-51

“On a more positive note, it is a pleasure for me to listen to the voice of the child delivered through the adults who have been asked to explore it. How often I have experienced the sweet insight of a child who can so easily see what is going on between their warring parents because they have lived in the war zone. How poignant it is to listen to a child who wants the love of both parents, a child with their own sense of justice and fairness, try to maneuver their way through the treacherous mine field of their parents’ anger, vindictiveness, hyper-vigilance, manipulation and over-reaction.

Sometimes a child simply longs for one parent at a particular point in their life. Sometimes a child simply needs to align with one parent because the stress of the battle is too much to bear. Sometimes going back and forth between houses is just too complicated. Sometimes a child needs to find a way to get people to listen so escalates a small complaint into a reason when really all he wants is to have his feelings heard.

Of course a 10 year old child is not free of influence! His parents are still, in some ways, his whole world. What the OCL evidence states is that because they have not been able to solve his problem, Kayne has been forced to choose, knowing full well the position of each parent.

I hear him.

Once you have asked a child for his views, and you hear him, what message does it give to the child if you ignore him?

How, or why, would he trust his parents, the court’s investigators, his therapist, the judge or, perhaps, anyone again with his true feelings?

Rhetorical question: he would not. Rendering a child unable to trust is not in his best interests.

That said, I do not relinquish my responsibility to create workable strategies to maintain relationship between Kayne and his mother. It is naive to say “whenever I want – dad will let me” in the context of this conflict. A firm schedule is required.”

         Lawrence v. Moll, 2021 ONSC 7338 (CanLII) at 16-23

“An order of discharge in a bankruptcy proceeding does not release a bankrupt from a debt respecting child support:  Bankruptcy and Insolvency Act s. 178(1)(c).

Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 provides:

 In this Act,

 “support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

The advantages of an order under this provision are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy and Insolvency Act: Wildman v. Wildman, 2006 CanLII 33540 (ON CA), 2006 CarswellOnt 6042, at para. 55.  As a result, the party owed the award can collect on at least some of it.”

         Hutchinson v. Ross, 2021 ONSC 4128 (CanLII) at 16-18

“The test for a stay of an order involving the parenting of a child is not in dispute. The overarching consideration in whether to grant a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the child would suffer irreparable harm if the application were refused; and, (3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the remedy pending a decision on the merits: Lefebvre v. Lefebvre (2002), 2002 CanLII 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6; Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at paras. 8-9.”

         K.K. v. M.M., 2021 ONCA 407 (CanLII) at 17