Siegel's Family Court Calendar

“An amicus is appointed to provide assistance to trial judge where “the trial judge is of the view that an effective, fair and just decision cannot be made with such assistance”: Morewald-Benevides v. Benevides, 2015 ONCJ 532 (CanLII) at para. 43.  Although the appointment must be made “sparingly and with caution”, the primary purpose is to “assist the court”.  An amicus does not act as counsel for the party but assists that party in leading evidence or placing their case before the court.  There is no solicitor-client privilege between an amicus and the party being assisted and the amicus may override the instructions or directions from a party in the interest of justice.

In R. v. Imona-Russell, 2013 SCC 43 (CanLII), 2013 S.C.C. 43, in the criminal context, a court “may appoint an amicus only where they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.”  Once appointed, “the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.” para. 87 cited in Morewald-Benevides at para. 42].”

Zomparelli v Zomparelli, 2016 ONSC 3949 (CanLII) at 14-15

“1. Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?

Although this court’s statements in Rothgiesser v. Rothgiesser, supra, concerning the interpretation of the current version of s. 4 of the Divorce Act may be obiter, I nevertheless agree with the conclusion that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction. I reach this conclusion based on a review of the legislative history of the jurisdiction provisions in the Divorce Act and based on a consideration of the language of s. 4 within the context of the entire Act.

The Divorce Act, S.C. 1967-68, c. 24 (the “1968 Act”), introduced the first comprehensive national divorce legislation in Canada. On February 13, 1986, the 1968 Act was superseded by the present Act, the Divorce Act, R.S.C. 1985, c.3(2nd Supp.) 1985 (the “1985 Act”). A review of the legislative history of the jurisdiction provisions in both Acts reveals the following:

(i) The 1968 Act

— under s. 5 of the 1968 Act, a court in a province had jurisdiction to “entertain a petition for divorce and to grant relief in respect thereof” if the person who presented the petition was domiciled in Canada and if either spouse had been ordinarily resident in the province for 12 months and actually resident in the province for ten months;

— under s. 11(1), a court was entitled to make orders for spousal and child maintenance and for custody (the title and sidenotes to s. 11 referred to such orders as “corollary relief”) “upon granting a decree nisi of divorce”;

— under s. 11(2), a corollary relief order could be varied “by the court that made the order”.

(ii) The 1985 Act

— the 1985 Act introduced the concept of a corollary relief proceeding, thereby making it clear that an order for corollary relief could be made after a divorce was granted. The 1985 Act included definitions of “divorce proceeding”, “corollary relief proceeding” and “variation proceeding” and also contained separate jurisdiction provisions for each form of proceeding;

— under s. 3 of the 1985 Act, the requirement that a party seeking a divorce be domiciled in Canada was removed and the residence requirement was modified — a court in a province could “hear and determine” a divorce proceeding where either spouse had been ordinarily resident in the province for a period of one year immediately prior to the commencement of the proceeding;

— under s. 4, a court in a province could hear and determine a corollary relief proceeding only if the court had granted a divorce to either or both former spouses;

— significantly, under s. 5, a court in a province could hear and determine a variation proceeding if either former spouse was ordinarily resident in the province at the commencement of the proceeding or if both spouses accepted the jurisdiction of the court;

— while s. 5 extended the jurisdiction to hear a variation proceeding to a court in a province where either former spouse was ordinarily resident, it is clear from reading the Act as a whole that this extension did not confer jurisdiction on Canadian courts to vary the support and custody provisions of a foreign divorce decree. In particular, s. 17 of the Divorce Act sets out a court’s power to vary an existing order and refers specifically to the power of a court to vary a “custody order” and a “support order”. “Custody order” and “support order” are defined in s. 2 of the Divorce Act by reference to the section in the Act under which such an order can be made. The power to vary orders for custody and support is therefore expressly limited to orders made under the Act and does not include the power to vary corollary relief orders made as part of a foreign divorce decree.

(iii) The 1993 amendment to s. 4

— s. 4 of the 1985 Act, which limited the jurisdiction to hear a corollary relief proceeding to the court that granted the divorce was amended on March 25, 1993 by S.C. 1993, c. 8, s. 1 (the “1993 amendment”);

— following the 1993 amendment, a court in a province had the same jurisdiction to hear and determine a corollary relief proceeding as it had to hear and determine a variation proceeding, i.e., if either former spouse was ordinarily resident in the province at the commencement of the proceeding or if both spouses accept the jurisdiction of the court.

In my view, when considered in the light of the legislative history of the jurisdiction provisions in the Divorce Act, the obvious purpose of the 1993 amendment was to bring the jurisdiction to hear and determine a corollary relief proceeding in to line with the jurisdiction to hear and determine a variation proceeding. As a result, rather than having to return to the court in the place where the divorce was granted, a former spouse wishing to commence a corollary relief proceeding can do so in the province where he or she is ordinarily resident. I see nothing in the legislative history of the Divorce Act to indicate that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction.

My conclusion concerning the purpose of the 1993 amendment is consistent with the brief references to its purpose contained in the legislative debates leading up to its enactment. Significantly, there is no reference in these debates to an intention to broaden the scope of Canadian divorce legislation to permit a Canadian court to make an order for corollary relief relating to a divorce that was granted in a foreign jurisdiction.

In Rothgiesser v. Rothgiesser, supra, this court doubted Parliament’s jurisdiction under s. 91 of the Constitution Act, 1867, to enact legislation dealing with support obligations in the absence of a Canadian divorce. The parties in this case did not make submissions concerning the extent of Parliament’s legislative authority under the Constitution Act.

However, even assuming that Parliament is empowered to enact a provision dealing with support following a foreign divorce as part of the Divorce Act, I consider it unlikely that Parliament would do so without clearly signalling its intention in that respect and without considering the appropriateness of such legislation in the context of private international law.

For example, had Parliament intended to give Canadian courts the authority to grant support following a foreign divorce, it is likely that Parliament would have considered whether it was also appropriate to enact a provision addressing in what circumstances a Canadian court should exercise that authority. As there is no indication that Parliament considered international law consequences when enacting the 1993 amendment and no clear statement in the Divorce Act that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to deal with support following a foreign divorce, I conclude that was not Parliament’s intention.

I find further support for my conclusion that s. 4 does not permit a former spouse divorced pursuant to a foreign divorce decree to commence a corollary relief proceeding under the Divorce Act based on a consideration of the Act as a whole. In my view, the very description of orders for spousal support, custody and child support as “corollary relief” confirms Parliament’s intention that these orders are intended as forms of relief that are incidental to the granting of the divorce. If a divorce was not granted in Canada, it is difficult to see how the making of a support order could properly be viewed as “corollary relief”.”

         Okmyansky v. Okmyansky, 2007 ONCA 427 (CanLII) at 31-38

“Second, the appellant submits that the trial judge did not have the authority to order a review with respect to custody and support.  The challenged portion of the trial judge’s Order is:

7. There shall be a review of the issue of custody, access and child support after December 31^st, 2012; either party may bring a Motion after that date, returnable before me by arrangement with the trial coordinator at Milton; each party shall file an Affidavit on which he or she may be cross-examined at the hearing.  In her Affidavit the Applicant shall disclose the school attendance records for the children to the date of the review, and any report cards for them.  Any absences from school for more than two days must be supported by a medical certificate.  The Respondent in his Affidavit shall disclose the efforts he has made to secure employment, and in particular at the highest rate or pay that he can secure.

We do not accept this submission.  The trial judge had genuine concerns about the children’s school attendance when they resided with their mother pursuant to the separation agreement and the father’s efforts to find employment in Sudbury.  It was reasonable for him to order the parties to return to court several months later so that these issues could be reviewed.  We note, with approval, that similar orders have been made by several superior court judges: see, for example, Andrade v. El Kadri, [2009] O.J. No. 2423 at para. 47; Filaber v. Filaber, 2008 CanLII 57449 (ON SC), [2008] O.J. No. 4449 at para. 58; and Johnstone v. Locke, [2012] O.J. No. 406 at para. 128.”

Noah v. Bouchard, 2013 ONCA 383 (CanLII) at 10-11

“Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, remains the seminal authority regarding constitutional remedies. Lamer C.J.C. identified the court’s obligation to fashion a remedy for a constitutional breach and the scope of such remedies, at p. 695 S.C.R.:

Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in.

Lamer C.J.C. set out three steps to be followed in determining the appropriate remedy for a Charter breach. First, the court is to define the extent of the impugned law’s inconsistency with the Charter. Second, it should select the remedy that best corrects the inconsistency. Third, the court should assess whether the remedy ought to be temporarily suspended.

Turning to the first step, we hold that the common law definition of marriage is inconsistent with the Charter to the extent that it excludes same-sex couples.

With respect to the second step, in our view the remedy that best corrects the inconsistency is to declare invalid the existing definition of marriage to the extent that it refers to “one man and one woman”, and to reformulate the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”. This remedy achieves the equality required by s. 15(1) of the Charter but ensures that the legal status of marriage is not left in a state of uncertainty.”

Halpern v. Canada (Attorney-General), 2003 CanLII 264037 (ON CA) at 145-148.

“What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.”

Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII) at 44-45

“In the Orders under Appeal, the appellant was given supervised access to the children only if she “provides a psychiatric report…satisfactory to [the respondent]”.  The appellant submits that the determination of access is a judicial function and was improperly delegated.

I agree.

In M.(C.A.) v. M.(D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), this court emphatically stated that the court cannot delegate to a third party its power to determine access.  At paras. 20-24 of M.(C.A.), Rosenberg J.A., writing for the court, gives four reasons why delegation is improper.  All four reasons apply in the present case.

First, it is unclear what the psychiatric report would have to demonstrate in order for the appellant to have access to the children.  Second, the appellant’s mental health is not the only consideration as to whether she should have access.  If access is in the children’s best interests, should it be denied absent the report?  And if access is not in their best interests, should a report entitle the appellant to have access?  Third, there is no statutory authority to delegate decision-making as to access to a third party.  Fourth, such a delegation improperly fetters the appellant’s access to the court on the question of access.”

D.D. v. H.D., 2015 ONCA 409 (CanLII) at 90-93

“In respect of the first part of the [Contino] two-stage analysis, our Court of Appeal in Froom v. Froom, 2005 CanLII 3362 (ON CA) and other appellate courts in British Columbia (Maultaud v. Blair, 2009 BCCA 102 (CanLII) and elsewhere, have held that there is no universally accepted method for determining whether the 40 per cent threshold created by s.9 (of the Guidelines) has been crossed.

The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year: L.(L.) v. C.(M.), 2013 ONSC 1801 (CanLII).

Cases decided after Froom have highlighted that the method chosen for calculating the 40 per cent threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.(L.) v. C.(M.), Czutrin J. (as he then was) concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. Justice Czutrin noted that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis: Scott v. Chenier, 2015 ONSC 7866 (CanLII) citing L.(L.) v. C.(M.) at 23-39.

That said, in Froom, our Court of Appeal held that the trial judge there did not err in approach in choosing to calculate the amount of time that the child was in the general care and control of the parent on the basis of days and not hours.”

         Skaljac v. Skaljac, 2018 ONSC 3519 (CanLII) at 68-71

“In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:

1. 1. 1. 1. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available;
         2. The claimant must demonstrate that he or she is incapable of funding the requested amounts;
         3. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.

The court in Stuart added that:

9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

However:

10) An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

Regarding Part 1 of the test, the court in Stuart said at paragraph 11:

11) Certainly the proof of the necessity of interim disbursements would be critical  to  the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:

1. 1. 1. 1.    There was no affidavit from counsel regarding outstanding fees;
         2.    There was no evidence of the prospective costs of the case.”

Malette v. Malette, 2019 ONSC 3448 (CanLII) at 68-72

“Counsel for the wife referred me to the case of Ganie v. Ganie, 2019 ONSC 1128, in which Justice L. Shaw summarized the principles applicable to claims for occupation rent.  At para. 287 and 288, the court stated:

287      In Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49-50, Osborne J.A. held that a judge has jurisdiction to order that occupation rent be paid if it is reasonable and equitable to do so. The relevant factors to be considered will vary from case to case. However, in a family law context, some factors are consistently taken into account such as: (a) the timing of the claim for occupation rent; (b) the duration of the occupancy; (c) the inability of the non-resident spouse to realize on his or her equity in the property; (d) any reasonable credits to be set off against occupation rent; and (e) any other competing claims in the litigation. The weight to be given to these and other relevant factors is a matter for the judge to determine.

288      In Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.J.), Quinn J., after reviewing the jurisprudence, stated at para. 53, that the following factors must be considered in making an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) the conduct of the occupying spouse, including the failure to pay support;

(c) delay in making the claim;

(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f)  whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) whether the occupying spouse has increased the selling value of the property; and

(i)  ouster is not required.”

Armstrong v. Armstrong, 2019 ONSC 3227 (CanLII) at 22.

June 2, 2020 – Joint Custody & Parallel Parenting

“The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.

Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.”

Ursic v. Ursic, 2006 CanLII 18349 (ON CA) at 25-26