Category: Uncategorized

“In Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 46-48, Abella J., writing for the court, outlined some of the important principles to be considered in reviewing discretionary orders in the family law context:

[C]ontractual autonomy … depends on the integrity of the bargaining process. Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse’s ability to do so[.]

…

[A] duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances….

…

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties…. [Internal citations omitted.]

Rule 13 of the Family Law Rules provides for extensive financial disclosure, and an ongoing duty to correct or update documents. Rule 13(15) provides that “[a]s soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.

…

The motion judge found that Mr. Dowdall knew, at the time he accepted the October 2019 offer, that he would soon earn a much greater salary. This finding is unchallenged and undisturbed on appeal. Given this finding, we agree with the motion judge’s conclusion that Mr. Dowdall did not act in good faith and breached the Family Law Rules, in particular r. 13(15), by failing to disclose the fact that he intended to accept a new job at a significantly higher salary before accepting the October 2019 offer.

…

Finally, we disagree with Mr. Dowdall’s suggestion that setting aside the settlement agreement will “promote litigation and encourage litigants to question, contest, and refuse to be bound by accepted offers without first asking more questions and demanding further disclosure.”

On the contrary, as stated by Abella J. in Rick, disclosure is fundamental to the just resolution of familial disputes. Setting aside a settlement brought about through intentional and material non-disclosure protects confidence in r. 13 disclosure obligations, which in turn encourages settlement. Where both parties have access to the relevant and material information and full disclosure is provided, as required by the Rules, litigation will be minimized. Courts are not inclined to interfere with settlements reached between parties, so long as there has been full and frank disclosure and the opportunity to obtain independent legal advice.”

         Dowdall v. Dowdall, 2021 ONCA 260 (CanLII) at 22-23, 27, 33-34

“Undertakings given at discoveries confer a presumption of relevance and propriety, including proportionality.  In Towne v. Miller, (2001), the court noted that an undertaking is an acknowledgment that a question is proper and that the subject matter of the undertaking is relevant.  Therefore, counsel should not be permitted to renege on a production undertaking where he later comes to believe that the document is not relevant.”

Ahmadi v. Heydari, 2018 ONSC 2682 (CanLII) at 50

“The caselaw is clear that this is a three part test reflected by the following subheadings: see the leading case of Drygala v. Pauli, 2002 CanLII 41868 (ONCA) at paragraph 23.  Good recent summaries of the factors to be considered and the steps in the analysis are set out in Tillmans v. Tillmans, 2014 ONSC 6773, Pey v. Pey, [2016] O.J. No. 1994 (S.C.J.), and Oyewole v. Adepoju, 2019 ONCJ 111.

The first part of the test is establishing whether the spouse is intentionally under-employed or unemployed.  As a general rule, a payor cannot avoid a support obligation by a self-imposed reduction of income (Drygala at paragraph 38).  Choosing to earn less than one is capable of earning is intentional under-employment (Drygala at paragraph 28).

The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63).  Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), 2003 CanLII 3433 (ON CA), 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, at paragraphs 88 to 91).  As noted in Pey, not all career decisions which result in reduced income will be unreasonable.

If there is a finding of intentional under-employment or unemployment, and if applicable, the under-employed or unemployed spouse has the burden of establishing that the decision was required by (1) the needs of any child of the marriage or any child, or by his or her reasonable (2) educational needs or (3) health needs.

If there is unjustified intentional under-employment or unemployment, the last step is to determine what if any income is appropriately imputed in the circumstances.  The onus is on the spouse claiming imputation to establish the evidentiary foundation for the amount sought to be imputed (see Berta above).  There must be a rational basis underlying the selection of an amount (Drygala at paragraph 44).  Drygala sets out considerations at paragraph 45:

45.   When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97 (CanLII), 14 R.F.L. (5^th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

Importantly, as noted in paragraph 46 of that decision as well as in Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (Ont. C.A.) at paragraph 38, the amount of imputed income can also be based on the payor’s previous earning history, applying an appropriate percentage.  There are numerous examples of this in the jurisprudence: see Olah v. Olah (2000), 2000 CanLII 22590 (ON SC), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien (2001), 2001 CanLII 28136 (ON SC); Vitagliano v. Di Stavolo (2001), 2001 CanLII 28202 (ON SC), 17 R.F.L. (5^th) 194 (Ont. S.C.); Zagar v. Zagar, 2006 ONCJ 296 (CanLII); Laing v. Mahmoud, 2011 ONSC 4047 (CanLII); Thompson v. Gilchrist, 2012 ONSC 4137; Stoyko v. Delorome, 2013 ONSC 4232; Walts v. Walts, 2016 ONSC 4777; and Woodenfren v. Woodenfren, 2018 ONSC 4583.”

            McNeil v. Dunne, 2019 ONSC 2528 (CanLII) at 48-53

“Counsel for the Respondent cited a number of cases where courts have addressed how a parent might respond to a recalcitrant teenager or older child who is the subject of a court order and who does not wish to comply with that court order.

Those cases include:

Godard v. Godard, 2015 ONCA 568 (CanLII), [2015] O.J. No. 4073 (C.A.)

In this case, the original motion judge had found ample evidence of failure on the part of the custodial parent to require her 11-year-old child to attend access with her father. As the Court of Appeal noted, the motion judge found that the child was “under the impression that she could decide, starting at the age of 12, whether she wished to continue access” with her father.

While this was a contempt motion, which requires a higher standard of proof than a motion to compel compliance under subrule 1(8), the Court of Appeal rejected the Appellant’s submission that it was sufficient for the custodial parent to encourage the child to attend access in order to avoid a finding of a deliberate and wilful disobedience of a court order beyond a reasonable doubt.

The Court of Appeal addressed the issue of how parents might approach dealing with older children and having them comply with court orders as follows:

28  Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order“: (citations omitted)

29  No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”. (Bolding added)

Quoting the motions judge, the Court of Appeal addressed the submissions that a parent cannot force the child to comply with the court order, writing:

30…  [W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?

The Court of Appeal found that the mother “did not go beyond mere encouragement to attempt any stronger forms of persuasion.” As a result, the Court of Appeal dismissed the Appellant’s appeal from a finding that she was in contempt of the court order that the child attend access with her father.

Stuyt v. Stuyt, [2009] O.J. No. 2475  

In this case, the child who was the subject of the proceeding was 13 years of age. The parties had engaged in years of litigation over a number of issues including custody and access. The mother had custody of the children. There was a specific schedule when the children were to be in the care of the father. The evidence established that on several occasions the 13-year-old child simply vacated the residence of the mother and went to stay with the father. On some of those occasions, he did so despite direction from his mother that he remain at home. The court found that by allowing the child to remain in his care at times when he was supposed to be in the care of his mother, the father was in contempt.

Justice C.D. Aitken wrote the following about the father’s evidence that he tried to have the child follow the terms of the order:

44  The Respondent’s evidence is that on a number of the occasions in question, he attempted to convince Braden to return to the Applicant’s home but Braden refused. There is nothing in the evidence that lends any credence to the Respondent’s evidence that he tried, in good faith, to persuade Braden to return to the Applicant’s home but the Respondent could not convince him to do so. The Respondent’s behaviour belies this assertion.

45  There is no evidence from the Respondent that he actually told Braden that he had to return to the Applicant’s home on any of the occasions in question. There is no evidence that he actually took Braden back to the Applicant’s home (via the intermediary) on any of these occasions (aside from the night of May 6th, when the Respondent returned Braden hours later). There is no evidence that the Respondent took any disciplinary action against Braden for his refusal to abide by the access regime to which both the Applicant and the Respondent had agreed. He did not ground him. He did not remove any privileges. He did not impose any sanctions for disobedience to parental instructions. On the contrary, Braden was rewarded for being at the Respondent’s farm instead of the Applicant’s home. (Bolding added)

Justice Aitken continued:

52  In order to meet his own needs of wanting Braden living with him, the Respondent is undermining Braden’s respect for the Applicant, for the law, for the courts, for the police, and for authority in general. Heaven help Braden as he moves through his teenage years and his years as a young adult if this is the message he is receiving from his father.

…

54  I join in the chorus along with several of my colleagues who have observed as follows.

A parent has some positive obligation to ensure that a child who allegedly resists contact with the other parent complies with the existing access order. (Hatcher, supra, at para. 27; Quaresma, supra, at para. 8)

A parent governed by an access order is not entitled, in law, to leave access up to the child. (Hatcher, supra, at para. 28; K.(B.) v. P.(A.), [2005] O.J. 3334 (S.C.J.) at para. 24)

There are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go to or stay at the home where he is supposed to be under an access order should be treated by the parent the same as a child who refuses to go to school or who otherwise misbehaves. The job of a parent is to parent. (Hatcher, supra, at para. 28; Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.) at para. 44)

55  The Respondent cannot hide behind Braden’s wishes as a reason not to comply with the orders of Polowin J. Whether the Respondent or Braden agrees or disagrees with those orders, both must comply with them. It is the responsibility of the Respondent to show that he is the adult, he is the parent, and he will take appropriate steps to make sure that the access schedule in the orders is complied with. (Bolding added)

B.K. v. A.P., [2005] O.J. No. 3334  

In this case, the child was 11 years of age, and the father had a custody order. The mother refused to return the child to the care of the father after being required to do so by a court order and claimed in her defence that the child refused to live with his father. Justice Mackinnon wrote the following with respect to the mother’s position:

22  The situation is different with respect to the April 13, 2005 order. Not only has the mother not returned Charles to the father’s custody, she has not made any effort to do so. In her affidavit, she states several times that Charles refused to leave her home on February 13 and has remained in her de facto custody since, by his own choosing. While she states that she has continued to encourage Charles to follow the court order, the specifics given are with respect to encouraging Charles to visit his father, at Easter and Father’s Day. Notably, he did visit his father on both occasions. There is nothing in the mother’s affidavit to show that she told Charles about the April 13 order, and that he and she must comply with it. No effort to actually deliver him or send him to his father’s, as required by that order, has been made. The comments of Chadwick J. in Fenato v. Fenato, [1999] O.J. No. 3546 (S.C.J.) (QL):

para. 15 I find it hard to understand how a custodial parent cannot control or direct an 11-year-old child unless the parent is not making a sincere effort to do so. I would expect if the father had taken a firm and more supportive stand Dominic would have returned to his mother and these incidents involving the police may never have occurred. It certainly leads one to draw the inference the father has very little control over his 11-year old son. If this is indeed the case Dominic may be completely out of control as he enters his teenage years.

…

24  It is clear from reading her affidavit that the mother’s view is that Charles does not want to live with his father. It is equally clear that, given his wishes, she does not intend to comply with the court order that he do so. The law does not entitle Ms. B.K. simply to leave this up to Charles. I find Ms. B.K. in contempt of paragraph 1 of the April 13th order. (Bolding added)

Michener v. Carter, [2018] O.J. No. 2325  

In this case, the children were 13 and 15 years of age. They resided with their mother in Ontario. Their father resided in British Columbia. Access between the father and the children had dwindled to the point that they were refusing to speak with him or visit with him when he attended in Ontario for that purpose. The father brought a motion seeking an order that the court find the mother in breach of orders affording the father access.

Justice J.P.L. McDermot wrote:

33  What steps does a parent have to go through to ensure that access take place? In Jackson, Chappel J. suggested four requirements for the parents to ensure that access take place. In para. 63(d) of her decision, Chappel J. suggested an inquiry as to the following four factors:

i.   Did they engage in a discussion with the child to determine why the child is refusing to go?

ii.   Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii.   Did they offer the child an incentive to comply with the order?

iv.   Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?(Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)). (Bolding added)

…

40  Whatever reason the children do not want to see their father, however, the real issue is whether the mother is taking all reasonable efforts to ensure that the access order was complied with. In the present case, I do not believe that she has. Prior to the abortive February visit, Ms. Michener deposed that, “If the children do not want to spend time with him or call him, I am not going to “punish” or “impose consequences” and if this is what the respondent interprets the term ‘reprimand’ in paragraph 49 of his affidavit I think it is inappropriate.” It appears that the most that she is willing to do is to “encourage and promote the concept of having contact with their father regularly when they can and he is available.” Later, after the failed visit, the applicant says that “I did encourage the children and told them it was okay for them to go with their father to Toronto and I was in support of it.” When I asked counsel as to whether that was the only evidence of the applicant’s attempts to force the children to go on the access visit, he confirmed that that was it.

…

42  Absent from all of these things were the latter two things that Chappel J. suggested were necessary for proof of compliance with an access order affecting children who were ambivalent over a visit with their father. The applicant provided evidence of neither inducements nor disciplinary measures designed to enforce what both of these parents agreed was in the best interests of the children, which was a four-day visit with their father. Rather, Ms. Michener confirmed that she was not willing to impose any consequences on the children if they did not wish to go on a visit with their father; she said that the most that she is willing to do is to encourage the children to go on a visit with their father which is, frankly speaking, insufficient to answer the allegations that she is in breach of the February 1 consent order.

…

44  I would firstly note that the reasons why the children do not want to go are not necessarily relevant to an enforcement motion where what is in issue is the efforts made by the responding party to make the access happen. It must be remembered that these parties agreed on two separate occasions that a visit between the children and their father was in the children’s best interests. Ms. Michener cannot now be heard to say that the visits may not, in fact, be in the children’s best interests when the parties previously agreed that they were. (Bolding added)”

Young-Marcellin v. Marcellin, 2021 ONSC 3026 (CanLII) at 145-157

“It is important to understand the overall role of this Court in dealing with motions for leave to appeal arbitration awards.  The Supreme Court of Canada has stated that a narrow scope of appellate review in family law matters, in general, promotes much needed finality: Ojo v. Mason, 2013 ONSC 1240 (Ont. S.C.J.), at paras. 19-24; Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at paras. 8-16; and Veneris v. Koh Veneris 2018 ONSC 4164, 2018 CarswellOnt 11297Ontario.

The Court of Appeal specifically applied this idea to motions for leave to appeal arbitration awards in the Superior Court of Justice. The Court of Appeal in Petersoo v. Petersoo, 2019 ONCA 624 (Ont. C.A.), at paras. 35-37, cited a line of jurisprudence indicating that:

[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at pars. 9, 11.

[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court…

[37] Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at para. 20:

So, the starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine and the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties “bargained for finality” using narrow appeal rights. [emphasis added]

What does the court mean by a gatekeeping role?  Does it mean that there is discretion not to grant leave, even if the court finds that the test set out in section 45 of the Arbitration Act is met? I find that it does, or at the very least, it provides the court with a broad range of discretion in determining if the matter justifies an appeal under section 45 of the Act.  In determining whether to grant leave to appeal an arbitration award, this Court must factor in the gatekeeping role played by the court, emphasized by the requirement to obtain leave of the court in the Arbitration Act.”

         A.A. v. R.R., 2021 ONSC 2984 (CanLII) at 11-13

“Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be retried in a subsequent suit between the same parties or their privies, even where it is an issue in a different cause of action: McIntosh v. Parent, 1924 Canlii 401, [1924] 4 DLR 420, at 422.”

            Telatin v. Shoumali, 2021 ONSC 5290 (CanLII) at 21

“Rule 10(1) of the Family Law Rules, O. Reg. 114/99, provides for thirty days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

Rule 1(8.4) reads:

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. 1. 1. 1. 1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
            2. The party is not entitled to participate in the case in any way.
            3. The court may deal with the case in the party’s absence.
            4. A date may be set for an uncontested trial of the case.

An “Uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

Rule 23(22) confirms that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given.

It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.”

            Obhan v. Chana, 2021 ONSC 2877 (CanLII) at 5-9

“The CYFSA [Child, Youth and Family Services Act, 2017] changed the considerations for access. A comparison to the CFSA [Child and Family Services Act, 1990] demonstrates this.

The test for access to a Crown ward under the old Act was strict:

59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption. [Emphasis added.]

The onus was on the person seeking access (usually the parent) to establish that the relationship was meaningful and beneficial. There was a presumption against access. And opportunities for adoption were prioritized over other considerations.

This changed significantly when the new Act was introduced. The new Act states that the court shall not make the access order unless it is satisfied that it is in the best interests of the child. Section 104(5) provides:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that theorder or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption. [Emphasis added].

This change is not just semantics. It represents a significant shift in the approach to access for children in extended care.

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive…”

Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 44-49

“Where a party seeks to alter, or to replace any final term of an Order in its entirety, the requirements to bring a Motion to Change (or at least some form of an amended pleading), and to satisfy the material change threshold do not disappear, just because the December 20, 2018 Order was a consent Order, and just because one parent or the other now wants different wording.  See McCall v. Res, 2013 ONCJ 254 ¶ 1-23 and see specifically ¶ 23.

There is nothing new in the amendments to the legislation that would allow otherwise.  In fact, section 18(4) of the new Children’s Law Reform Act states that the amendments, which came into effect on March 1, 2021, do not, in themselves, constitute a material change in circumstances.  Section 29 of the new legislation continues to prohibit a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order.  And section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary ones.

Furthermore, to the extent that others of the parents’ claims would require the Court to change, prior to trial, a pre-existing temporary or final term in an Order, there are different legal questions that apply to those requests, too.  That is not to say that the Court cannot intervene, in a child’s best interests in situation of urgency, even if the motion was procedurally improper.  But as I will explain, I do not find it appropriate to do so in this case regarding almost all of the parties’ claims in their motions.

 I begin with the material change test, required by section 29 of the Children’s Law Reform Act.  Various, well-established principles govern a material change analysis.  See Gordon v. Goertz,1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60.  In this case, I am mindful that the principles should be adapted somewhat because the previous Orders, now in issue, were consent Orders.

Regarding the material change threshold:

(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;

(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;

(c) the focus is on the prior order and the circumstances in which it was made;

(d) the change should represent a distinct departure from what the court (or the parties) could reasonably have anticipated in making the previous order; and

(e) the Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not;

(f) the subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.

And if the Court finds that a material change has occurred:

(g) the Court should consider the matter afresh, without defaulting to the existing arrangement;

(h) the Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;

(i)  the Court must be guided by the statutory criteria set out in section 24 the Children’s Law Reform Act;

(j) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and

(k) the Court should limit itself to whatever variation is justified by the material change in circumstance.

         B.R.M. v. M.A.E.M., 2021 ONSC 2791 (CanLII) at 38-42

“An order under s. 12 order is a discretionary order.  The court may make an order under this section upon balancing the relevant three factors under a contextual approach to the facts. The three factors are succinctly summarized in Bronfman v. Bronfman 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (Ont. S. C.) as follows:

The relative strength of the case made out by the moving party; 

The balance of convenience (or inconvenience); and, 

Irreparable harm.

Under the first factor, the court assesses the strength of the moving party’s case for financial claims, including claims to interests in property. The primary consideration for the court to weigh on this branch of the test is the likelihood that the moving party will be entitled to receive a judgment at trial. Preservation orders are most often brought prior to the final determination of questions of entitlement and the determination by a court of any amount one party is to pay another.  A fact-driven analysis must be made by the court to ascertain whether one party will likely owe funds to the other party under the Family Law Act, or for an equitable claim.  This analysis is often limited by the evidentiary record before the court, and allowances must sometimes be made having regard to the stage of the case at which the motion has been brought and any obstacles the moving party has encountered in obtaining disclosure from the other side.

The Applicant has referred the court to the case of Both v. Both, [2008] O.J. No. 1358.  In Both v. Both, Backhouse J. found that the wife had raised a prima facie case that she is entitled to a substantial equalization payment. Although the parties’ affairs were “very complex and the record is undeveloped” which made “the quantum of the wife’s equalization payment very difficult to assess even on a preliminary basis”, there was a common understanding that  the husband would owe the wife a fairly significant sum of money.

In Bronfman, Sachs J. held that “there are certain cases where the factual record, and the applicable  legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount”. In such cases, the first factor will be given heavier weight than perhaps the other two remaining branches of the test.  Although the record was not fully developed, Justice Sachs ultimately granted a preservation Order as both sides had not been in a position to obtain their valuations of assets.

…

In the second part of the test, the court is required to look at the inconvenience the order would cause to the Respondent, balanced against the effect, or risk, that would be caused to the Applicant if the assets were disposed of before trial.

Justice Kiteley in Adler v. Adler, 2016 ONSC 2414 wrote that the objective of a preservation order is to “[respond] to the need to create a situation where the Applicant’s claims for an equalization payment are protected, and her claims for support are not impaired or defeated”.

In Adler, the court stated that the more complex and the more need the responding spouse has for unfettered flexibility in his financial affairs, the greater the need to make an order pursuant to sections 12 and 40.  Kiteley J. explained that, while the court appreciates the responding party’s necessary transactions, such freedom cannot be limited under the guise of ‘convenience’ to the extent where the moving party would be prejudiced. This is particularly highlighted in cases, such as the present one, where there has been a flagrant disregard of court orders.

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For the third and final factor, the court must examine any crucial or negative effect that a preservation order will cause to either party.  Under this factor, the court also considers whether either party will suffer significant harm if the order is not made.

The Applicant refers again to the decision of Backhouse J. in Both v. Both that featured a risk analysis to determine irreparable harm. In the case of Both, the husband had encumbered the matrimonial home with a $2M mortgage after separation without the wife’s consent, even though he knew or ought to have known her consent was required. The motions judge found that the husband had orchestrated additional large encumbrances and the movement of property from one corporation, in which the wife held an interest, to a corporation in which she did not. The court held that there “is a real risk that if the requested order is not made, that the wife’s equalization claim could be defeated”.”

         Qureshi v. Qureshi, 2021 ONSC 2750 (CanLII) at 46-49, 51-53, 55-56