Siegel's Family Court Calendar

“The court raised the admissibility issue of the respondent’s DNA test report at the outset of the hearing of the motion.  That issue had not been discussed in the affidavit material; nor was it mentioned in the respondent’s factum.

The CLRA deals with paternity testing including blood and DNA tests, and admitting the test results into evidence.  Section 17.2 provides:

Blood, DNA tests

17.2 (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence.

Conditions

(2) The court may impose conditions, as it thinks proper, on an order under subsection (1).

Consent to procedure

(3) The Health Care Consent Act, 1996 applies to the test as if it were treatment under that Act.

Inference from refusal

(4) If a person named in an order under subsection (1) refuses to submit to the test, the court may draw such inferences as it thinks appropriate.

Exception

(5) Subsection (4) does not apply if the refusal is the decision of a substitute decision-maker as defined in section 9 of the Health Care Consent Act, 1996.

Section 17.2(1) authorizes the court not only to grant a party leave to obtain a paternity test, but also “to submit the results in evidence.”

In the present case, there was no evidence indicating that any orders were made pursuant to s.17.2(1).  The two DNA test reports were introduced into the record by appending them as exhibits to the parties’ affidavits.

Where parties are cooperating, it may be appropriate for parties to agree to obtain a DNA test without an order and to agree that the test can be submitted into evidence.  The parties then can advise the court of their agreement which also should include agreement and verification as to the qualification of the expert who signed the report.

However, in the present case, while the applicant cooperated in the DNA testing regarding the respondent, her evidence, and her position, is that she is not consenting to the admissibility of that report.

If the respondent seeks to rely on his DNA test report, it is incumbent on the respondent to ensure that the test report is evidence that is properly before the court.  By way of analogy, there are other statutory provisions where reports are admissible as evidence: for example, medical or other reports signed by a practitioner (Section 52(2), Evidence Act, R.S.O. 1990, c. E.23), parenting capacity assessments in protection cases (Section 98(12), Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, reports of the Children’s Lawyer (Section 112(6), Courts of Justice Act, R.S.O. 1990, c. C.43) and assessments in parenting cases (Section 30(9), CLRA.”

            MacDonald v. Gabriel, 2024 ONSC 1355 (CanLII) at 21-27

“Entitlement and quantum of costs is in the discretion of the judge: Section 13(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am.; Mattina v Mattina, 2018 ONCA 867 at para 9.

In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina at para 10.

The starting point is that the successful party is presumptively entitled to costs: r. 24(1).

In assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8) FLR.

Similarly, in assessing quantum, judges are to consider as per r. 24(12) FLR: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses; and any other relevant matter: r. 24(12) FLR.”

            Newfield v. McKee, 2024 ONSC 1392 (CanLII) at 4-9

“Counsel for Mr. Rastkar relies on the decision in Martin v Martin (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.) to argue that once a court makes an order that a jointly owned matrimonial home is to be sold, the court cannot grant either owner a right of first refusal without the consent of the other. This applies equally to a matrimonial home. Once the home is ordered to be sold, each spouse is entitled to receive a fair market value for his or her interest in it.

In other words, if either Mr. Rastkar or Ms. Soltani wish to purchase the matrimonial home from the other, each must compete with other interested purchasers and do so without any inside information as to the other offers made. The caselaw makes clear that the owner must participate in the bidding process and comply with all the formalities of that process as would any other third party bidder and the home should be sold to whoever makes the highest offer within that fair process: Howard v Howard, 2022 ONSC 6915 at para 50.”

            Rastkar v. Soltani, 2024 ONSC 1384 (CanLII) at 15-16

“An anti-suit injunction restrains a party from proceeding with his foreign action.  In ordering this type of injunction, the court is exercising its in personam jurisdiction over the party. Shaw v. Shaw, 2007 CarswellOnt 4417 (S.C.), at para. 24. It does not restrain the foreign court from proceeding: Shaw, at para. 24. This type of remedy is available to restrain family law litigants from continuing competing family law proceedings commenced in foreign jurisdictions.

The test that must be met by the moving party seeking an anti-suit injunction has been described as follows:

a.  It is preferable (not mandatory) that a foreign proceeding is pending;

b.   It is preferable (not mandatory) that the applicant has not obtained a stay from the foreign court already;

c.   The domestic court is the “potentially appropriate forum”;

d.   The domestic forum has the closest connection to the action and the parties, and no other forum is clearly more appropriate; and

e.   There is no injustice to the parties if the forum proceeding does or does not go forward, and an injunction will not deprive the forum plaintiff of advantages in the foreign jurisdiction, which would be an unjust deprivation: Shaw, at para. 21;Borschel v. Borschel, 2020 ONSC 4395, 43 R.F.L. (8th) 366, at para. 93; Bell’O International LLC v. Flooring & Lumber Co., 2001 CarswellOnt 1701 (S.C.), at para. 9, citing Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, at p. 519.

As can be observed, the elements for an anti-suit injunction are similar to the jurisdiction simpliciter and forum non conveniens analysis.  If anything, the anti-suit injunction may have a lower threshold than the real and substantial connection test; i.e., the requirement to show the domestic court is the “potentially” appropriate forum and no other forum is “clearly more appropriate”.  However, I do not need to determine the relative thresholds for purposes of this motion.”

            Pan v. Zhao, 2024 ONSC 1328 (CanLII) at 28-30

“A spouse’s interest in a pension plan constitutes “property” as defined in the FLA, and therefore, prima facie, it must be included in that spouse’s NFP calculation. See the decisions in Jackson v. Mayerle, 2016 ONSC 72, and Martin v. Martin, 2018 ONSC 6804.

A spouse’s interest in a pension plan may be removed from his or her NFP calculation and dealt with separately in certain circumstances that are set out in s.10.1(3), (4), and (5) of the FLA. Those sections of the FLA give the court some options for dealing with pension divisions outside of the NFP calculations. The options include the transfer of a lump sum out of the pension plan, or the division of periodic pension payments if the pension is in pay. See Fawcett v. Fawcett, 2018 ONCA 150 at paras. 31-32, Grassie v. Grassie, [2013] O.J. No. 1030 at paras. 60-66, L.M. v. D.B.M., 2017 ONSC 5197 at para. 73, Jackson at para. 597, and Martin at paras. 160-170.

A survivor’s benefit pension is a pension in its own right as it represents an expected income stream that can be actuarially valued. It is analogous to the pension entitlement of an employee who is not retired. See Bennett v. Bennett, [2004] O.J. No. 5808 (Div. Ct.) at para. 20.

A survivor’s benefit pension falls within the definition of “property” in the FLA and prima facie must be included in a spouse’s NFP calculation. See the Divisional Court decision in Bennett at paras. 20-27. Also see the trial decision in Bennett, reported at 2003 CanLII 1957 (ON SC), 68 O.R. (3d) 619, MacMillan v. MacMillan, [2000] O.J. No. 104 at paras. 26-28, and Withers v. Withers, [2013] O.J. No. 1441 at para. 69.

There is no court decision at any level that specifically states that a survivor’s benefit pension cannot be removed from the NFP calculations and dealt with separately. However, in every case in which a survivor’s benefit pension has been found to have value, the court has included the survivor’s benefit in the NFP calculations.

In the Bennett case, the husband had acquired a pension plan through which the wife had a survivor’s benefit pension. The trial judge included the value of the wife’s survivor’s benefit pension in the calculation of the equalization payment. Writing for the Divisional Court, Pierce J. wrote at para. 27 that “the survivorship pension is carved out of the pension as a whole, with the result that Mr. Bennett receives a reduced monthly benefit in his pay envelope by virtue of the plan funding a survivor pension for his wife.”

In the MacMillan case, both parties agreed that the husband’s pension should be excluded from the equalization payment and divided at source. At issue was the treatment of the wife’s survivor’s pension benefit. The trial judge held that the wife’s survivor’s pension benefit was to be valued and included in her NFP calculation for the purpose of determining the equalization payment.

In the Withers case, the husband had acquired a pension that included the wife’s survivor’s benefit pension. At trial the wife submitted that it would be fundamentally unfair to include her survivor’s pension in her NFP calculation because to do so would cause her to suffer a financial hardship and because she may never actually receive a payment from the survivor’s pension. The husband submitted that the wife’s survivor’s pension had value as the husband had in fact contributed money, or money’s worth, through his employment, to the acquisition of the survivor’s pension. Relying upon the Bennett decision, the trial judge in Withers held that the wife’s survivor’s pension must be included in the wife’s NFP calculation for the purpose of determining an equalization payment.

In Armstrong v. Armstrong, 2016 ONSC 126, the wife’s survivor’s pension was not included in the NFP calculations, but the circumstances were very different than in the present case. In Armstrong, unlike the present case, the terms of the husband’s federal pension provided that the wife’s survivor’s benefits would terminate on divorce. Wein J. found that the wife’s survivor’s benefits should not be included in her NFP because the parties’ divorce was almost a certainty and the wife’s survivor’s benefit was “very unlikely to vest.” Thus, it was not included in the wife’s NFP calculation as it had no value.

Given the above-mentioned court decisions, I accept that the applicant’s survivor pension in this case is property in the form of an interest in a pension plan, and it has value. Therefore, it must be included in the applicant’s NFP calculation unless there is specific authority in the FLA to exclude it.”

McMullen v. McMullen, 2021 ONSC 1570

“To define the modes of liability underlying the new tort of family violence, the proper starting point is the definition of “family violence” found in s. 2 of the Divorce Act. Based on this statutory definition, to establish liability on a civil standard, the plaintiff must establish:

Conduct by a family member towards the plaintiff, within the context of a family relationship, that:

1. 1. 1. 1. 1.  is violent or threatening, or
            2.  constitutes a pattern of coercive and controlling behaviour, or
            3.  causes the plaintiff to fear for their own safety or that of another person.

Under the first mode of liability, the plaintiff must establish that the defendant/family member (“family member”) intended to engage in conduct that was violent or threatening (i.e., consistent with the well-recognized intentional torts of assault and battery). Under the second mode of liability, the plaintiff must establish that the family member engaged in behaviour that was calculated to be coercive and controlling to the plaintiff. Under the third mode of liability, the plaintiff must establish that the family member engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear (i.e., consistent with battery, and/or intentional infliction of emotional distress).

While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother that the existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury.  In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.

That all being said, to establish “family violence,” the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property. It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.

The focus must be on the family member’s specific conduct, which must be particularized using specific examples. It will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents. From a fairness perspective, the tort claim cannot be a series of bald assertions. The defendant must know the case to meet. Therefore, the trial judge must be satisfied that the plaintiff’s pleadings are sufficiently detailed to allow the defendant to respond.

Once liability, is proven, the nature of the family violence—circumstances, extent, duration, and specific harm—will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.”

            Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII) at 52-57

“The application judge correctly stated the general legal principles applicable to the dispute: for most categories of relationships, including the one involved here, there is a rebuttable presumption of a resulting trust where one party makes a transfer of property to another for no consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 2 S.C.R. 795, at para. 24. A purchase money resulting trust is a type of resulting trust. It arises “when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1. Where the person taking title is not the minor child of the person advancing the funds, there is a presumption that “the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution”: Nishi, at para. 1.

Paula argued on appeal that having a third party take title to avoid merger under the Planning Act is a bar to relying on the presumption of resulting trust. This proposition is not supported by the case law and is inconsistent with general principles. Where a resulting trust is presumed, the onus is on a party seeking to rebut that presumption to establish that the purchaser intended to make a gift: Lattimer v. Lattimer, (1978), 1978 CanLII 1547 (ON SC), 18 O.R. (2d) 375, at p. 378 (H.C.). This is not a matter of constructive or deemed intention, but of establishing actual intention, requiring a case-by-case evaluation of the evidence to ascertain the gratuitous transferor’s actual intention on the balance of probabilities: Schwartz v. Schwartz, 2012 ONCA 239, 349 D.L.R. (4th) 326, at paras. 42-43. The intention to avoid merger does not necessarily entail the intention to make a gift.”

            Falsetto v. Falsetto, 2024 ONCA 149 (CanLII) at 17-18

“If the court finds that there has been family violence then s 24(4) directs the court to take into account the factors set out in that subsection when considering the impact of that family violence.

Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260 (CanLII); Mattina v. Mattina, 2018 ONCA 641.

The Supreme Court of Canada has specifically addressed the issue of family violence in the context of the best interests analysis under the Divorce Act, the provisions of which are similar to the CLRA: Barendregt v. Grebliunis, 2022 SCC 22. Findings of family violence are a critical consideration in the best interests analysis.  Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives and can result from direct or indirect exposure to domestic conflicts.

The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship.  Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation parenting.  Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency: Abaza v. Adam, 2023 ONSC 1776.

Children may experience family violence in a variety of ways; they may be the direct victims of family violence, they may be directly exposed to family violence by one family member towards another or may experience the aftermath by observing injuries, seeing police and CAS investigations as well as observing the emotional turmoil that follows: S.V.G. v. V.G., 2023 ONSC 3206.

Violence may not be physical but may be emotional or psychological. Denigrating the other parent in front of the children or within earshot meets the definition and can be devastating to the child.

Parents should be encouraged to resolve disputes outside the court when not affected by family violence or a power imbalance: Colucci v. Colucci, 2021 SCC 24. It is therefore essential that the court consider whether a co-operative parenting arrangement is appropriate where there has been family violence.

The court also must remain alive to the possibility that some allegations are fabricated or exaggerated.  Ignoring such a possibility poses a serious threat to the furtherance of justice in cases where family violence claims are advanced; the court must ensure that the claims are credible and that they are not being advanced to obtain a litigation advantage: S.V.G. v. V.G., 2023 ONSC 3206.

Unwarranted calls to authorities, such as the police and CAS can be psychological abuse as can surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts: K.M. v. J.R., 2022 ONSC 111; Dayboll v. Binag, 2022 ONSC 6510.”

          Sinclair v. Quade, 2024 ONSC 1098 (CanLII) at 38-46

“There are three bases for entitlement to support, as explained by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420: contractual, compensatory, and non-compensatory (also called “needs-based”). The contractual entitlement to support reflects “the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup”: Bracklow, at para. 18. Under s. 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court must have regard to any “order, agreement or arrangement relating to support of either spouse”.

The compensatory basis for entitlement applies “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage”: Bracklow, at para. 18. The court in Bracklow, at para. 39, further notes:

Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument.

Lastly, the court in Bracklow, at paras. 40-41, describes the non-compensatory basis for entitlement. This requires:

…[T]he court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application…

…Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense…

These bases for spousal support are complemented by the objectives of variation orders for spousal support set out in s. 17(7) of the Divorce Act:

17 (7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

It is with these policy objectives in mind that the appellant’s motion for a variation in spousal support must be assessed.”

          Hendriks v. Hendriks, 2022 ONCA 165 (CanLII) at 41-45

“As I noted earlier, the motion judge appeared to accept that on an interim motion to vary a final parenting order, the stringent legal test in F.K. is apt, but cautioned that read in isolation, the F.K. decision might result in a judge placing too much emphasis on maintaining the status quo. This, in turn, could skew the legal analysis, which remains the best interests of the child. He later accepted that before making such an order, he was “obliged to demonstrate why the change from the status quo is compelling.” But upon reviewing his analysis, which I have outlined, it is plain that he rejected the meaning given to the concept of compelling circumstances in the caselaw, including his own decision in Hartman, conflated his determination of the best interests of the child with a finding of compelling circumstances, and effectively threw the caution required on an interim motion to the wind.

In this regard, it is telling that the motion judge reached his conclusion about the best interests of the child first, and then reasoned backwards, simply labelling as compelling the two principal considerations that informed his determination that a change was in the best interests of the child. Whether or not these considerations would provide justification for a change on a final and full hearing, it is impossible to imagine that a contradictory statement of the child’s preference together with the desirability to reduce the number of transitions between parents are compelling reasons to make a temporary change.

It is also telling that although the motion judge properly took into account the stress that O. was under in concluding that there were compelling circumstances that justified a variation of the final order, he did not explain how the change in parenting schedule would in any way reduce that stress. In fact, there is nothing in the record that could explain it.

In my view, the reasons of the motion judge underscore the rationale for limiting relief such as this on interim motions to exceptional or urgent circumstances.  As I have already noted, in Hartman, the motion judge adopted the following statement of the law, which bears repeating:

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.”

S.H. V. D.K., 2022 ONSC 1203 (CanLII) at 55-58