Siegel's Family Court Calendar

“The issue on this appeal is whether the Superior Court has jurisdiction under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(1) to vary or discharge child support arrears where the application is brought after children are no longer “children of the marriage”.

That issue turns on how we are to interpret D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231. D.B.S. holds that a court does not have jurisdiction to entertain an original application for child support under s. 15.1(1) of the Divorce Act if the children are no longer “children of the marriage”. Does that mean that a court has no jurisdiction to vary an existing order for child support under s. 17(1) where the application to vary is made after children are no longer “children of the marriage”?

D.B.S. did not directly consider the point at issue on this appeal, namely, whether the court has jurisdiction to entertain an application to vary a child support order after the children are no longer “children of the marriage”. That issue falls to be determined under s. 17(1) of the Divorce Act…

One of the four cases decided together with D.B.S., Henry v. Henry, involved an application for retroactive variation of a child support order. At the time the notice of motion to vary was filed, the eldest child was no longer a child of the marriage. The Supreme Court held, at para. 150, that as the Notice to Disclose/Notice of Motion had been served while that child still was a child of the marriage, there was jurisdiction to entertain the application. That might suggest that there would have been no jurisdiction had the proceedings not been initiated while the child was still a child of the marriage, but the court did not directly consider or decide that point. In some cases, including the case at bar, trial level judges have held that D.B.S. governs and declined to vary child support orders after the children are no longer “children of the marriage”: see Giroux v. Mueller, 2013 ONSC 246 (CanLII), [2013] O.J. No. 90; Durso v. Mascherin, 2013 ONSC 6522 (CanLII), [2013] O.J. No. 4803; Noseworthy v. Noseworthy (2011), 313 Nfld. & P.E.I.R. 1 (N.L.S.C.); Boomhour v. Huskinson (2008), 2008 CanLII 26261 (ON SC), 54 R.F.L. (6th) 297 (Ont. Sup. Ct.); Krivanek v. Krivanek (2008), 2008 CanLII 44732 (ON SC), 56 R.F.L. (6th) 390 (Ont. Sup. Ct.); Haavisto v. Haavisto, 2008 SKQB 446 (CanLII), 325 Sask. R. 82; Millar v. Millar, 2007 SKQB 25 (CanLII), 292 Sask. R. 316.

There is, however, a strong line of conflicting authority supporting the view that given the different wording and purpose of s. 17(1), the test for jurisdiction to vary differs from the test for jurisdiction to make an original order under s. 15.1(1).

I am more persuaded by this line of authority. The leading and most carefully reasoned decision is Buckingham v. Buckingham, 2013 ABQB 155 (CanLII), 554 A.R. 256, where Strekaf J. concluded that both the wording of the statute and the principles of child support favoured distinguishing D.B.S. and interpreting s. 17(1) to allow a court to vary a child support order even though the children are no longer children of the marriage. The reasoning in Buckingham has been followed in a number of Ontario trial level decisions under the Divorce Act: Timmers v. Timmers, 2016 ONSC 306; Charron v. Dumais, 2016 ONSC 7491 (CanLII), [2016] O.J. No. 6235; Lemay c. Longpré, 2014 ONCS 5107 (CanLII), 2014 ONSC 5107, 68 R.F.L. (7th) 365. Courts have also retained jurisdiction on the basis that the payor parent’s deliberate absence or deception prevented the recipient from applying for a variation while the child was still a “child of the marriage”: George v. Gayed, 2014 ONSC 5360 (CanLII), [2014] O.J. No. 4383; Simone v. Herres, 2011 ONSC 1788 (CanLII), [2011] O.J. No. 1626.

I note as well that Ontario cases decided under the Family Law Act, R.S.O. 1990, c. F.3  hold that the court has jurisdiction to vary child support orders after retroactively after the children cease to be dependants, frequently citing Buckingham in support: see Surighina v. Surighin, 2017 ONCJ 384 (CanLII), [2017] O.J. No. 3022; Smith v. McQuinn, 2016 ONSC 7997 (CanLII), [2016] O.J. No. 6600; Meyer v. Content, 2014 ONSC 6001 (CanLII), [2014] O.J. No. 4992; Catena v. Catena, 2015 ONSC 3186 (CanLII), 61 R.F.L. (7th) 463. While not determinative of the point at issue on this appeal, there would be an additional unfairness if parents in precisely the same situation were permitted to vary Family Law Act orders, but not orders under the Divorce Act.

To date, where retroactive variation is sought when the children are no longer entitled to support, the courts have seen fit to entertain the request in the following situations, summarized in Smith v. McQuinn, at para. 59:

In summary, the case law has created exceptions to the DBS analysis in the following circumstances:

a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act, 1985, c. 3 (2nd Supp.) (“Divorce Act“);

b) In motion to change proceedings where there is an existing order and an established support obligation under the FLA; and

c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient’s failure to bring the retroactive support claim within the requisite time.”

Colucci v. Colucci, 2017 ONCA 892 (CanLII) at 1-2, 11-16

“Since Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, it has been clear that no tort action exists for wrongful interference with access rights. The remedy against such interference is now governed by s. 35 of the CLRA, which provides for relief by way of a restraining order and a permanent injunction.”

Ludmer v. Ludmer, 2014 ONCA 827 (CanLII) at 42

“The Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. Specific considerations include the nature and sensitivity of the information in the documents in the court file, and whether not making the order could cause harm to a person.

Section 70 of the Children’s Law Reform Act provides as follows:

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

         (i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

         (iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.  2009, c. 11, s. 18.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

Order on application

(3) Any interested person may make an application for an order under subsection

In L.C.F. v. G.F. 2016 ONSC 6732 (CanLII), for example, Justice Harvison Young considered a request for a sealing order and publication ban in the family context. She held that “in any and all judicial proceedings where judges are asked to utilize their discretion to order that public access to a file or proceeding be restricted, courts must apply the well-established Dagenais/Mentuck test: Re Vancouver Sun, 2004 SCC 43 (CanLII) at paras. 23-27… There can be no doubt that any discretion within the family context must be exercised within the constraints of the Dagenais/Mentuck test.” See para. 17.  Judges must engage in a case by case analysis.

At the same time, there is an “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.” See Danso v. Bartley, 2018 ONSC 4929 (CanLII) at para. 52 per Justice Myers. In L.C.F., supra, Justice Harvison Young noted that the analysis with respect to children is “somewhat different,” and that where courts step in to protect children in family cases by imposing restrictions, “the children are demonstrably vulnerable” and generally younger (the youngest child in that case was 16). She notes that publication bans are restricted as much as possible and that sealing orders are rare. See paras. 47-50.”

M.M. v. N.M., 2018 ONSC 6939 (CanLII) at 18-21

“While the “maximum contact” principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon, at para. 24, McLachlin J. noted that:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.”

Bjornson v. Creighton, 2002 CanLII 45125 (ON CA) at 34

“The suitability of a joint custody order depends on there being “some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another”.  That evidence may exist notwithstanding one parent’s professed inability to communicate with the other.  Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.), at paragraph 11.

A Court may find that the parents could and had communicated effectively and put the interests of the children ahead of their own even where the relationship between the parents was, at times, conflictual and with strife.  Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.), at paragraph 16.

Faced with a situation, as here, with a status quo argument being made by one parent, it is not enough for the Court to simply acquiesce to what has been in place as a Temporary Order.  Even if the Court finds that the status quo would be just fine for the children, the Court should go on to consider whether a shared parenting arrangement would be in the best interests of the children.  Lo v. Mang, [2011] O.J. No. 390 (S.C.J.), at paragraph 96.

To help us assess what is in the best interests of the children, we look to the factors listed under subsection 24(2) of the Children’s Law Reform Act (“CLRA”).”

D.C. v. H.C., 2014 ONSC 6696 (CanLII) at 75-78

“Even a full recovery of costs following on a finding of bad faith must be respectful of the after-tax, financial means of the family.  In no way is $99,593.00 in fees for a consent Order, two adjournments and a two hour argued motion reasonable or proportionate.

Mr. Hand does not a have a “free pass” to claim whatever costs he chooses.  One cannot litigate with impunity, spending beyond any reasonable amount for a family of similar means, and then press for a full recovery no matter what the circumstances – even with a finding of bad faith tucked into one’s pocket.  To so allow would be to ignore the complex nature of costs.

Proportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters: Beaver v. Hill 2018 ONCA 840 (CanLII).”

Hand v. Hand, 2018 ONSC 6707 (CanLII) at 22-24

“The trial judge erred by failing to give sufficient weight to the maximum contact principle. He stated that maximizing the contact between a young child and both parents “is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).

The trial judge’s statement that if the child lived primarily with his mother in Kingston, the child would continue to have “regular contact” with his father, and his statement that the child would not “suffer by virtue of living in Kingston”, are further indications of his inadequate weighing of the maximum contact principle.

The failure to attach appropriate weight to the maximum contact principle led the trial judge to make an order under which the child, who had been living approximately half the time with the father since the separation, would see his father only every other weekend. In addition, under the order, the child would spend less time with his paternal grandparents, who had cared for him after the mother returned to work at the end of her maternity leave. The trial judge did not adequately consider the disruption to the child inherent in this change.”

Berry v. Berry, 2011 ONCA 705 (CanLII) at 13-15

“It is trite to say that documentary disclosure is an integral part of family litigation.  Without forthright and expedient financial disclosure, family litigation cannot be conducted in a logical, rational manner nor can litigation be settled without comprehensive documentary disclosure.  Documentary disclosure which includes financial disclosure is integral and the foundation of family law cases for the purpose of either going to trial or settlement.  The sooner comprehensive financial disclosure is provided in a logical manner, the sooner litigants in family cases can assess their case and attempt to settle that case.”

Hao v. Wang, 2015 ONSC 6989 (CanLII) at 70

“Section 46 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 implements the Hague Convention as the law of Ontario.

Article 1 of the Convention states that its objects are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in  other Contracting States.

Once a wrongful removal of a child from the Contracting State in which the child was habitually resident has been established, Article 12 of the Convention requires that “the return of the child forthwith” be ordered.

The order is to be made expeditiously. Article 11 provides that “the judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.” The Article goes on to give the applicant and the Central Authority the right to request a statement of the reasons for delay if a decision has not been reached within six weeks from the date of the commencement of the proceedings.

Article 16 provides that the court in the State to which the child has been taken “shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention”. Thus, as LaForest J. put it in Thomson, “an application for return pursuant to the Convention pre-empts a local custody application”.  Or as this court explained at greater length in Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), [2001] O.J. No. 1598:

[A] Hague Convention application does not engage the best interests of the child test – the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account. See Medhurst v. Markle (1995), 1995 CanLII 9273 (ON SC), 26 O.R. (3d) 178 (Gen. Div.) and Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226 (Ont. C.A.). Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention…the children must be returned to their habitual residence.

The philosophy of the Hague Convention is that it is in the best interest of children that the courts of their habitual residence decide the merits of any custody issue. Adhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown.”

Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at 18-23

“A successful party is presumed to be entitled to his or her costs, pursuant to Rule 24(1) of the Family Law Rules.  The preferable approach in family law cases is to allow costs on a full recovery basis, provided the successful party acted reasonably and the costs claimed are proportional to the issues and results and were within the range that the opposing party should have expected if unsuccessful in the motions Family Law Rules, O Reg. 114/99, Rule 224(1); Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (CanLII), para. 11; Biant v. Sagoo 2001 ONSC 28137 (CanLII), para. 1.

Costs Orders are designed to achieve three principal purposes, (a) to indemnify successful litigants; (b) to sanction unreasonable conduct of the litigation; and (c) to encourage settlement: Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII).

A litigant whose conduct was reasonable and who is successful in a proceeding should not be required to bear the costs of having his rights tested: Serra v Serra 2009 ONCA 395 (CanLII).  However, an unsuccessful litigant should not be required to pay the costs of a motion that the successful litigant precipitated by his unreasonable conduct, or be so heavily burdened with costs as to discourage other litigants from submitting issues to the court where the outcome is not a foregone conclusion that should have been anticipated.

Historically, the successful party in a motion made necessary by the responding party’s breach of a court order was entitled to costs on a substantial indemnity scale: Cassidy v. Cassidy, 2011 ONSC 791 (CanLII), para. 14; Astley v. Verdun [2013] ONSC 6734 (SCJ) at paras 52 to 58.  This was because a finding of contempt is a finding of unreasonable conduct. Substantial indemnity costs did not follow automatically or invariably from a finding of contempt, but such a finding gave rise to a rebuttable presumption that the successful party was entitled to costs on a substantial indemnity scale. In Astley v. Verdun, (2013), Goldstein J. described the jurisprudence governing the imposition of substantial indemnity costs as it pertains to contempt, he stated:

I characterize the test this way: there is a rebuttable presumption that substantial indemnity costs are appropriate in a contempt of court case. The presumption may be rebutted where the contemnor is suitably contrite, has attempted to purge his or her contempt, has taken steps to minimize costs incurred by the other party, and the contempt itself is towards the lower end of the “flagrant and wilful” scale: at para 57.

[Emphasis added]

In the present day, the Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 18(14), dealing with the costs consequences of a failure to accept an Offer to Settle, instead differentiates between “costs” and “full recovery of costs”.  Rule 24(8) also refers to “costs on a full recovery basis,” where a party has acted in bad faith. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis: Sordi v. Sordi, 2011 ONCA 665 (CanLII), 283 O.A.C. 287.  It has a range of costs awards open to it, from nominal to just short of full recovery.

In Sims-Howarth v Bilcliffe, (2000), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules: 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.).  He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v D.M.: 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.), at para. 42.

In Berta v. Berta, (2015), the Court of Appeal stated:

In Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5^th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.  There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263 (CanLII), 15 R.F.L. (7^th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665 (CanLII), 134 R.F.L. (7^th) 197, at para. 21; M. (A.C.) v. M. (D.), 23003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 40: Berta v. Berta, 2015 ONCA 918 (CanLII), at paras. 92-93. 

Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.  In Perri v. Thind et al., (2010), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court: 2009 CanLII 34977 (ON SC), 98 O.R. (3d) 74 (S.C.). In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct: Perri, at paras. 24-26, 32-33.”

Chrabalowski v. Chrabalowski, 2018 ONSC 6716 (CanLII) at 15-21