Siegel's Family Court Calendar

“In Davis v. Crawford, 2011 ONCA 294 (CanLII), a five-person panel of this court revisited the question of lump sum spousal support and, in particular, reconsidered the court’s earlier decision in Mannarino, upon which the trial judge relied in part.  In Davis,the court clarified that lump sum spousal support is not reserved only for cases where there is a real risk that periodic payments would not be made or other very unusual circumstances.  Rather, s. 34 of the Family Law Act confers a broad discretion on judges to make an award of periodic or lump sum spousal support as appropriate under the circumstances.  That said, at para. 60, the court reaffirmed that a lump sum award should not be made in the guise of support for the purpose of redistributing assets.  This is the issue for which the trial judge made reference to Mannarino.

The court discussed at paras. 60 – 76 of Davisa number of considerations as relevant to the question of the propriety of a lump sum spousal support award. One important consideration is whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency. The court explains that there is a need to weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages, and that the advantages and disadvantages of making such an award will be highly variable and case specific. The court identified a number of these advantages and disadvantages at paras. 67 and 68, most of which were referred to by the trial judge. The court noted that as a practical matter, most spousal support orders will be in the form of periodic payments. But, a lump sum award will not necessarily take the place of periodic support and can be made to supplement an award of periodic support.”

Beck v. Beckett, 2011 ONCA 559 (CanLII) at 20-21

“As I have said, under the Act, questions of title must be settled before property can be equalized.  By reason of s. 10 of the [Family Law] Act, trust claims – including claims based on constructive or resulting trust – may be advanced prior to equalization.  And, crucially, s. 14 legislates a presumption of a proprietary resulting trust.  Where the presumption applies, it yields a finding of beneficial ownership in the context of a gratuitous property transfer.  The Act contains no analogous presumption of constructive trust.

…

Furthermore, any motivation to shield the property from the Husband’s potential creditors does not in itself rebut the presumption of a resulting trust.  In Nussbaum v. Nussbaum(2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Karakatsanis J., then of the Superior Court of Justice, noted that, despite “a line of cases … where the court has found the specific intention to evade creditors means an implied intention to deprive oneself of beneficial ownership”, and “[w]hile evidence that someone intended to fully evade creditors can be evidence that they intended to gift their entire interest in the property, the intention of the parties is a question of fact to be determined from all the evidence”: at paras. 19-27 and 32.  See also Schwartz, at para. 43”

Korman v. Korman, 2015 ONCA 578 at paras 29 & 38

“Custody decisions are owed a high degree of deference. Appellate courts do not have the advantages of a trial judge in making findings of fact upon contradictory evidence, as most assuredly would ensue if fresh evidence were admitted in this case. Most requests for assistance from the Office of the Children’s Lawyer come from trial courts, for this reason. As pointed out in B (A.C.) v. B. (R.), 2010 ONCA 714, over a nearly 17 month period during which 5548 referrals were made to the Office of the Children’s Lawyer, all but two came from the Superior Court of Justice and the Ontario Court of Justice.”

Fiorito v. Wiggins, 2014 ONCA 603 at 6

“The mother filed a Government of Canada “Explore Careers – Wage Report” for lawyers.  That report discloses “wages” for lawyers, broken down by region, including Regina, Saskatchewan where the father currently lives and practises law.

According to that report, the low, median and high annual wagesfor lawyers in Regina are $55,182, $116,172 and $221,058, respectively.

Based on this report, the mother asks the court to impute income to the father in the amount of $50,000, being approximately the low end of that wage report, in recognition that this is father’s first year of practising as a lawyer.

In Caine v. Ferguson, 2012 ONCJ 139 (CanLII), Justice Stanley B. Sherr addressed the weight to be given to such survey reports.  At paragraph 32 of Justice Sherr’s reasons, he stated [my emphasis]:

In Rodrigues v. De Sousa, 2008 ONCJ 807 (CanLII), 69 R.F.L. (6th) 449, [2008] O.J. No. 4541, 2009 Cars­well­Ont 8979 (Ont. C.J.), I relied on the case of Scholes v. Scholes, 2003 CanLII 2349 (ON SC), 2003 CanLII 2349, 125 A.C.W.S. (3d) 313, [2003] O.J. No. 3432, 2003 Cars­well­Ont 3299 (Ont. S.C.) and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry.  In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability.  However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539 (CanLII), 226 O.A.C. 184, 40 R.F.L. (6th) 284, [2007] O.J. No. 2922, 2007 Cars­well­Ont 4805 (Ont. C.A.), I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.  In the specific circumstances of the payor in Rodrigues v. De Sousa, I did not apply the wage range set out in the government publications.”

Jahan v. Chowdhury, 2016 ONCJ 503 (CanLII) at 75-78

“The scheme of the [Family Law Act] does not support the proposition that an application judge can simply redistribute properties among the parties. To interpret the Act in this way would be inconsistent with its overall scheme, which gives a judge only a very limited power to distribute properties in the circumstances set out in s. 9. That is, section 9 gives the court the power to transfer properties only “if appropriate to satisfy an obligation imposed by the order [for the equalization of net family properties]”. In other words, the transfer power under section 9 is specificallyconnected to the satisfaction of the order for the equalization of net family properties rather than a generaltransfer power for the settlement of disputes arising from marital breakdown.

To a similar effect is the recent decision of this court in Thibodeau v. Thibodeau, 2011 ONCA 110 (CanLII), 104 O.R. (3d) 161. In that case, Blair J.A. endorsed this interpretation of the legislative scheme of the Family Law Act, albeit in the context of a bankruptcy proceeding. As explained by Blair J.A. at para. 37, “[s]eparating spouses are not entitled to receive a division of property. … An equalization paymentis the chosen legislative default position”. He continued, at paras. 39 and 40, by observing that the enhanced remedies available under s. 9(1)can give rise to proprietary rights if the record justifies such an exception in the equalization payment regime, but only if a “real need” is shown.

Trial courts have consistently adopted this interpretation. One example is  Zadegan v. Zadegan, [2002] O.J. No. 2190 (S.C.J.), in which, after referring to the fact that the parties had provided her with proposals as to how their real properties might be distributed, J. Mackinnon J. held as follows, at paras. 90-92:

90      In this way, both parties have, in effect, asked the court to redistribute their assets, in order to achieve what each of them regards as the proper outcome. In my view, this is not the type of order that the court can make under the Family Law Act. That Act does not direct the court to redistribute assets in order to make an equal distribution. See Berdette v. Berdette(1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513 (C.A.). Rather, it directs the court to determine the net family property of each spouse. Then, if one spouse’s net family property is less than that of the other, s. 5(1) provides for equalization. … [T]he powers of the court to give effect to the equalization are set out in s. 9(1):

…

91      Thus, while s. 9(1)(d) permits the court to transfer property in order to satisfy an obligation imposed by the order, this is not the same thing as rearranging ownership of assets. …

92      Accordingly, the court could order the transfer of an asset between the parties in order to satisfy an equalization payment, or part of it, but cannot order the transfer of various assets between the parties in order to bring about an equitable distribution of assets.

 

 Buttar v. Buttar, 2013 ONCA 517 (CanLII) at 53-55

“Following argument of this motion, counsel for the mother twice delivered a letter to me making further submissions. This was improper. Rule 1.09 provides that when a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, directly or indirectly unless all the parties consent in advance to the out of court communication or the court directs otherwise. I have disregarded the further submissions in coming to my decision in this matter.”

Timleck v. Beltrano, 2014 ONCA 585 at 28.

“Longstanding case law decided under the Fraudulent Conveyances Acthas addressed the issue of who is a “creditor or other” for the purpose of s. 2. In Hopkinson v. Westerman(1919), 45 O.L.R. 208 at p. 211, 48 D.L.R. 597 (C.A.), the court held that “others” extended to persons who, though not judgment creditors, had pending actions in which they were sure to recover damages. In that case, the person who transferred the land was a defendant in a tort action. In Bell v. Williamson, 1945 CanLII 95 (ON CA), [1945] O.R. 844, [1946] 1 D.L.R. 372 (C.A.), the court similarly held that the claimant need not be a judgment creditor at the time of the conveyance, but a person may fall within the words “or others” even if the person has, at the time of the impugned transaction, only a claim for unliquidated damages in contract or in tort. Robertson C.J.O. stated at p. 848 O.R.:

I do not doubt for a moment that a transaction may be null and void within s. 2of The Fraudulent Conveyances Act, although the plaintiff who brings the action attacking it may, at the time of the transaction, and even when action is brought attacking it, have had nothing more than a claim for unliquidated damages in contract or in tort. The effect of the words “or others” following the word “creditors” is to give to such persons a right of action to have a transaction set aside as null and void as against them, if made with the required intent. . . .

This interpretation of the phrase “creditors or others” has been applied many times including in the family law context: See for example: Shephard v. Shephard(1925), 56 O.L.R. 556, [1925] 2 D.L.R. 897 (C.A.); Ferguson v. Lastewka, 1946 CanLII 96 (ON SC), [1946] O.R. 577, [1946] 4 D.L.R. 531 (H.C.J.); Oliver v. McLaughlin(1893), 24 O.R. 41 (Q.B.); Murdoch v. Murdoch(1976), 1976 CanLII 260 (AB QB), 26 R.F.L. 1, 1 A.R. 378 (T.D.);Chan v. Chan, [1993] B.C.J. No. 442 (S.C.); and Lepore v. Lepore, [1998] O.J. No. 733 (Dist. Ct.), affd by Ontario Court of Appeal (October 22, 1990).

Therefore, in order for a spouse to qualify as a person who is intended to be protected from conveyances of property made with intent to defeat her interest, she must have had an existing claim against her husband at the time of the impugned conveyances, that is a right which she could have asserted in an action.”

Stone v. Stone, 2001 CanLII 24110 (ON CA) at 23-25

“The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260 (CanLII); Roy v. Roy2006 Canlii 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See:Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CanLII 6423 (Ont. SCJ.).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of oneparent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour.  However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb 2008 CanLII 19764 (ON SC), 2008 Canlii 19764 (Ont. S.C).

In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship:  See:  Garrow v. Woycheshen, 2008 ONCJ 686 (CanLII), 2008 ONCJ 686, (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).”

G.T.B. v. Z.B.B.,2014 ONCJ 382 (CanLII) at 23-27

“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: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. Sup.Ct.).”

Godard v. Godard, 2015 ONCA 568 at 28

“Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII).

Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:

a)  One parent is unjustifiably excluding the other from the children’s lives and can’t be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly 2007 Carswell 8271 Garrow v Woycheshen, 2008 ONCJ 686 (CanLII); Madott v Macorig, 2010 ONSC 5458 (CanLII), [2010] OJ No 4371 (SCJ); Cooke v. Cooke, 2012 NSSC 73 (CanLII); Bushell v. Griffiths2013CarswellNS 240 (N.S.S.C.), and  Izyuk v. Bilousov, supra, (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).

b)  Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany, 2011 ONSC 2850 (CanLII), 2011 ONSC 2850; Scervino v Scervino 2011 ONSC 4246 (CanLII), 2011 ONSC 4246 (SCJ). In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas[2006] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6^th) 23(Ont C.A.).

In  Baker‑Warren v. Denault, 2009 NSSC 59 (CanLII),  the court held that a parallel-parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child.

Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See: Roy v. Roy 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159 (CanLII) and Graham v Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff’d at 2008 ONCA 260 (CanLII) (where the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the “children in the middle of conflict every few days” and “the parents’ inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict”).

In V.K. v. T.S., ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b)  The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent.  If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests.  If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

I would add four more considerations that I believe are relevant to a parallel-parenting analysis.

The first consideration is for the court to evaluate the likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child’s playoff hockey game?

It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order – a battleground that will create more conflict and instability for the children.

The third considerationis the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non- residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

The fourth considerationis about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents’ conflict.

A parallel-parenting order can be a useful tool for settlement. The risks associated with it (as set out above) may be outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents.  With parents who sincerely want to be involved with their children for their children’s benefit, such an order will likely have the benefit of de-escalating conflict. The children, in such cases, will receive the benefit of two involved parents.

However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a “full parallel-parenting model” order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.”

K.H. v .T.K.R., 2013 ONCJ 418 (CanLII) at 45-59