Siegel's Family Court Calendar

“Divorce jurisdiction under s. 3(1) of the Divorce Act depends on one of the spouses being “ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

In my view the leading case on ordinary residence is still Thomson v. Minister of National Revenue (1945), 1946 CanLII 1 (SCC), [1946] S.C.R. 209 (S.C.C.). In that case, the tests enunciated include “residence in the course of the customary mode of life… contrasted with special or occasional or casual residence” (p. 224); and “one is ‘ordinarily resident’ in the place where in the settled routine of his life he regularly, normally or customarily lives” (p. 231). See also MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), p. 112:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community.

Also interesting is Macrae v. Macrae, [1949] P. 397 (Eng. C.A.), in which the following appears:

Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in a particular place up till a particular day. He then cuts the connection he has with that place… and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place.”

Jenkins v. Jenkins, 2000 CanLII 22523 (ON SC) at 12-13

“Motions for distribution of the proceeds of sale of a home are generally uncomplicated and the costs awarded on such motions are modest. I have considered the following costs awards in such motions in the past:

a) In Chapman v. Talib, 2012 ONSC 1980 (CanLII), J. Mackinnon J. stated that he was inclined, subject to written arguments, if submitted, to award $1,500 costs;

b) In Christie v. Christie, 2003 CanLII 1946 (ON SC), Marshman J. awarded nominal costs of $250;

c) In Piekarska v. Piekarski, 2013 ONSC 5064 (CanLII), Fragomeni J. awarded $10,000 costs to the wife in her motion for the release of proceeds of sale, among other issues.

d) In  Wilson v. Heera-Wilson and RBC, 2012 ONSC 5411 (CanLII), Fregeau J. awarded costs of $550;

e) In Prikker v. Vaine, 2010 ONSC 2914 (CanLII), Boswell J. awarded costs of $2,500.”

LeClerc v. LeClerc, 2015 ONSC 2978 (CanLII) at 56

“With respect to the issue that the mother is on legal aid, the Court is governed by s. 46(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, which states that:

The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.

As set out in Ramcharitar v. Ramcharitar, (2002) 2002 CanLII 53246 (ON SC), 62 O.R. (3d) 107 (S.C.), the Court must treat the legally aided client the same as a client who is paying for his/her services.  At para. 25, the Court found:

[T]he party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced.”

J.S.G. v. E.M.G., 2016 ONSC 3038 (CanLII) at 19-20

“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.”

Pecore v. Pecore, [2007] 1 SCR 795 at 24

“Under the Divorce Act, the custodial parent’s conduct can be considered only if relevant to his or her ability to act as parent of the child.  Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability.  Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled.  For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child’s best interests: see McGowan v. McGowan (1979), 11 R.F.L. (2d) 281 (Ont. H.C.); Wells v. Wells (1984), 1984 CanLII 2646 (SK QB), 38 R.F.L. (2d) 405 (Sask. Q.B.), aff’d (1984), 1984 CanLII 165 (SK CA), 42 R.F.L. (2d) 166 (Sask. C.A.).  However, absent a connection to parenting ability, the custodial parent’s reason for moving should not enter into the inquiry.”

Gordon v. Goertz, [1996] 2 SCR 27, 1996 CanLII 191 at 23

“Section 19 of the Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles: a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices. b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children. c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent. d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances. e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income: 1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of his 2018 ONCJ 286 (CanLII) – 57 – or her reasonable educational or medical needs, or those of a child? 3. If not, what income is appropriately imputed?

The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, [2009] O.J. No. 1552. (Ont. C.A.).

Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.).

The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.”

G.S.W. v. C.S., 2018 ONCJ 286 (CanLII) at 303-310

“Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.

At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283 (CanLII), 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611 (CanLII), 13 C.R. (7th) 396, at para. 72.

At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways.  In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the exert evidence”: para. 76.”

White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, 2015 SCC 23 (CanLII) at 22-24

“Rule 39(9) lists the functions of a case management judge, who is required to supervise the progress of the case, to conduct conferences and to hear motions. Rule 39(9) is seen as the gold standard of case management, but it only applies to cases in unified Family Court jurisdictions. Since this case was not decided at a unified Family Court site, the more sparse case management provisions of r. 41 apply. This rule does not explicitly list the functions of a case management judge. This distinction in the Rules reflects the fact that unified sites historically had more judicial resources and therefore could provide more active case management.

However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).”

D.G. v. A.F., 2015 ONCA 290 at 12-13

“The motions judge dealt with this first condition as follows [at p. 391 R.F.L.]:

Section 2(8) of the Act sets out three conditions which must be met before a Court will exercise its discretion to extend the limitation period. The first is whether there are apparent grounds for relief. Based on the materials filed on this motion, I am satisfied that this threshold has been met. Mr. Scherer has attested to several reasons why he did not assert this claim prior to the expiration of the limitation period.

(Emphasis added)

It appears from these reasons that the motions judge was of the view that the first condition under s. 2(8)(a) established an initial “threshold” that required the moving party to show apparent grounds for obtaining an extension of time. However, the “relief” under s. 2(8)(a) (and under s. 2(8) (b)) is not referable to the extension of time sought by the moving party on the motion but to the relief sought on the prescribed claim. The “relief” in question here is the equalization payment sought by the appellant in his Counterpetition. It is incumbent upon the appellant to show that he has apparent grounds for making that claim.”

Scherer v. Scherer, 2002 CanLII 44920 (ON CA) at 15-16

“To have custody of a child is to have decision-making responsibilities in relation to the child’s care and upbringing.  Good communication between parents is relevant to the appropriateness of a joint custody order. In our view, the trial judge, who had the benefit of seeing and hearing the parties over the nine-day trial, gave adequate reasons for refusing to order joint custody. He found, at paras. 58-60 of his reasons:

This is not an appropriate case for an order for joint custody. As noted by the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106 (C.A.), a mere hope for better communications between parents after the litigation has ended is not a sufficient basis to order joint custody.

Based on the evidence before me, there is no indication that the parties could effectively co-parent the children. This is a case rife with conflict between the parents and with serious allegations levelled against each other.

In my view, an order for joint custody would not be in the children’s best interests and would only lead to further conflict between the parents.”

B.V. v. P.V., 2012 ONCA (CanLII) at 9