Siegel's Family Court Calendar

“The recent changes to the legislative terminologies, contained in the Children’s Law Reform Act, reflect a more child focused approach to decisions relating to parenting orders.  Regarding decision-making responsibility, the focus is on the role of the parent visa vie the child; the responsibility to make effective decisions which impact the child, rather than on the rights of the parents in relation to the child.  Regarding parenting time, the focus is on the role of the parent while having care of the child; the responsibly to provide effective parenting, rather than on a parent’s “right” to time with the child.

Along with the changes to terminology is a recognition that decision-making responsibility is not an “all or nothing” proposition, and that the responsibilities can be divided between parents, as is consistent with the interests of the children.

The enumerated factors for consideration, confirm that the determination is specific to the facts of each case.  The factors provide a framework to consider the unique circumstances of each family, and suggest considerations found to be particularly relevant to determining how the child’s best interests can most effectively be determined.  The factors provide a helpful framework and focus, for considering the facts of each case.

Jurisprudence has also developed and evolved, around the determination of decision-making responsibility and parenting time, to guide in the application of the legislative framework.

Of particular relevance in this case, is the jurisprudence relating to the determination of sole decision-making responsibility versus shared or divided decision-making.  These parents initially made the determination, following months of negotiations, that it was in the best interests of their children to share decision-making responsibility on major decisions relating to their children.  This was reflected in the Separation Agreement they executed in August 2016, wherein they agreed to share “joint custody” of their children, and to make major decisions concerning the children’s education, non-emergency health-care, and religion, together.

Each parent is now seeking sole decision-making in relation to major decisions, in consultation with the other parent.

There is a history of judicial consideration of the issue of “joint” or shared decision-making versus sole decision-making, and the circumstances in which each is more appropriate.  In the end, however, the determination is fact-specific to the particular circumstances of the family before the Court. The question is always, what decision-making regime will best serve the interests of these children; their need to have effective, timely decisions made for them, consistent with their unique needs and circumstances.  Looked at from the parents’ perspective, which parent is best able to assess and understand the needs of the children and to make decisions that meet those needs effectively, and with the meaningful involvement of the other parent.

Just as each family differs, and circumstances require an individualized regime to best meet the unique needs, so too does the legislation provide for individual forms of decision-making orders, providing for decision-making to be granted to more than one parent, or the incidents of decision-making to be divided between the parents.”

          Vieira v. Bettencourt, 2022 ONSC 6584 (CanLII) at 42-49

“The Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”) is a statutory code for the enforcement of support orders in Ontario. By FRSAEA subsection 20(6), the operation or enforcement of a support deduction order is not affected by a stay of enforcement unless the underlying support order is also stayed.

A payor may seek relief regarding the amount that is being deducted for arrears under a support deduction order: FRSAEA subsection 27(1)(c). The combined effect of FRSAEA subsections 20(6) and 27(1)(c) is that the Director may consent only to a stay of the amount deducted for arrears. To obtain a full stay of enforcement, the support payor must not only obtain a stay of enforcement against the Director, FRO, but also a stay of the underlying support order against the support recipient.

The support recipient is the proper party to respond to a request for a stay of the support order, while the Director responds to enforcement issues, including a stay of deductions for arrears.

In Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, the moving party sought an order suspending the enforcement of spousal support obligations. Justice Quinlan summarized the statutory scheme at paras. 31-33:

[31]           The Director has a duty to enforce support orders filed with her office and the authority to determine by what means her duties are to be carried out. An order staying the Director’s enforcement power would preclude FRO from exercising its legislative mandate.

[32]           The Director is required to enforce a support deduction order that is filed in her office until the related support order is terminated and there are no arrears owing or until the support order and support deduction orders are withdrawn.

[33]           A support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed.  Proceedings to stay an ongoing support obligation raise issues of entitlement as the support payor is seeking to vary, albeit temporarily, support payments agreed to between the payor and the recipient.  The Director is not a party to such proceedings.”

          Alalouf v. Sumar, 2023 ONSC 6604 (CanLII) at 4-7

“The jurisprudence also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.

The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a)   A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b)  There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the familyunit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c)   Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

The following are additional principles regarding temporary relocation cases:

a)   The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b)   Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

c)   Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d)  Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273.

e)  Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager.

f)   There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra.

g)   Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:

a.   The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)

b.   Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordonframework (par. 113).

c.   The so-called second stage of the Gordonframework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).

d.   In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).

e.   The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130).

f.   Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).”

          N.P. v. D.H., 2022 ONCJ 535 (CanLII) at 53-56

“A relocation is more likely to be approved “where the clear primary caregiver for a child seeks to relocate and more likely to be denied if there is a shared parenting arrangement” (see: Barendregt, at para. 121).

The applicable burdens of proof on a relocation application are as follows:

a.      if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests (see: Divorce Act, s. 16.93(1));

b.      if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests (see: Divorce Act, s. 16.93(2)); and

c.      in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests (see: Divorce Act, s. 16.93(3)).

The law of statutory interpretation is well settled.  The words of a statute “are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (see: Wong v Liu, 2023 ONCA 272, at para. 19).  The appropriate interpretation is one “that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences” (see: Wong, at para. 19).”

          Tass v. Jackson, 2023 ONSC 6564 (CanLII) at 24-26

“I agree with Justice Pazaratz that “[s]upervised access is not intended to be a long-term solution to access problems”, but that it may be an appropriate intermediate step in situations where, for instance, there are substance abuse issues that need to be addressed and/or where the child is being introduced or reintroduced to a parent after a significant absence.  Izyuk v. Bilousov, 2015 ONSC 3684, at paragraphs 52-53.

At the same time, however, it must be remembered that supervised access is a short step away from complete termination of any relationship between a parent and a child, and thus it should be seen as the exception and not the norm, as a last resort and not as a knee-jerk reaction to one parent’s allegations against the other.  There is a very helpful article on the subject written by Nicholas Bala, Michael Saini and Sarah Spitz, found at 2016-085 of the December 2016 edition of the Queen’s Law Research Paper Series, titled Supervised Access as a Stepping Stone Rather Than a Destination: A Qualitative Review of Ontario Services & Policies for Assisting Families Transitioning from Supervised Access, 2016 CanLIIDocs 4597.”

          T.E. v. G.E., 2021 ONSC 7661 (CanLII) at 8-9

“I note that the onus is on the payor-spouse to justify a deviation from the s. 16 method of determining income: see Fung v. Lin, 2001 CanLII 28193 (ON SC), [2001] O.J. No. 456 (S.C.).

The case law confirms that this issue is factually driven and determined by what is appropriate in the particular circumstances of the case.

In Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7^th) 311, at para. 97, the Court of Appeal for Ontario, for instance, held that RRSP income is presumptively part of a spouse’s income for child support purposes, since RRSP income is included in “total income” on the T1 General form.

At paras. 103-104, J. Simmons J.A. notes as follows:

[103] The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.

[104] Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father’s first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four-bedroom house should not deprive his children of an available source of child support.

In Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7^th) 17, the Court of Appeal upheld the exclusion of RRSP withdrawals where, in the Court’s discretion, it was considered appropriate in the circumstances not to include them. In that case, the withdrawals were found to be “non-repeating encroachments on capital” that were used by the payor to fund the costly litigation and not to enhance the payor’s lifestyle: at para. 24.

In Kotyck v. Kotyck, 2017 ONSC 7261, the Court considered whether the $57,261 the payor received from the collapse of his United States 401(K), the equivalent to a Canadian RRSP, should be included in his income.  The court noted that RRSP income is presumptively part of a parent’s income for child support purposes and no exception for withdrawals has been provided in Schedule III of the Guidelines.  Justice Hood found that the payor had not demonstrated any unfairness in including the equivalent of the RRSP withdrawal in his income: at para. 9.

In Knight v. Frobel, 2018 ONSC 3651 (Ont. Div. Ct.), the Divisional Court upheld the trial judge’s decision to include a severance payment in the calculation of the payor’s income for a given year.

In MacDonald v. MacDonald, 1997 ABCA 409, 57 Alta. L.R. (3d) 195, the Court of Appeal overturned the trial judge’s decision when the trial judge found that bonuses, stock options and a severance package were property, rather than income.  They said that a bonus is considered income for tax purposes and that if any bonus had previously been received by the payor, the Court would look upon it as income for purposes of calculating child support under the Guidelines: at para. 15. The Court of Appeal also found that a severance package was an acceleration of income and a direct income replacement, so it should be added to any other income the payor earns during the period, at para. 17.

In Molitor v. Andreou, [2005] O.J. No. 3815 (S.C.), Mr. Justice Clark found, at para. 7, that a payor does not have the right to forego readily available income to the prejudice of his or her child in terms of reduced support and the Court imputed income to the payor, when he made such a deferral.  This Court, in that instance, also included in income for purposes of calculating child support, a one-time payment of USD $353,288, which was a payment settling a collusion claim: at para. 9.”

            Ramezani v. Najafi, 2021 ONSC 7638 (CanLII) at 249-257

“In A.M. v. C.H., 2019 ONCA 764, the Ontario Court of Appeal confirmed that the court has jurisdiction to make therapeutic orders, which includes reconciliation therapy. Therein, the court noted:

(a) The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case (para. 47).

(b) Judges have broad authority under sections 16(a) and 16(2) of the Divorce Act and sections 28(1)(a),(b), and (c) of the Children’s Law Reform Act to make orders for counselling or therapy (paras. 49-51).

(c) Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests (para. 65).

(d) Notwithstanding the court’s jurisdiction to order therapy, in the case of mature adolescents, a tension exists between their strong claims to autonomy and the duty of the court to act protectively. The ‘best interests’ standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. Their wishes should carry greater weight as their maturity increases, and scrutiny of their maturity level should intensify in relation to the severity of the potential consequences of the treatment or its refusal (paras. 66-68)

(e) There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case (paras. 72-74).

In determining whether the court should make an order for reconciliation counselling, the following principles are applicable:

(a) Such orders are to be made sparingly.

(b) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?

(c) Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?

(d) There must be compelling evidence that the therapy will be beneficial to the child.

(e) The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected.

(f) Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial recommendation compel participation and cooperation by the recalcitrant parent?

(g) Is the child likely to voluntarily engage in counselling therapy?

(h) Resistance to therapy is an important factor but is not the determining factor whether such an order should be made.

(i)  Where a clinical investigation or assessment is underway, no order should be made pending their conclusion.

(j)  Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

See: Testani v. Haughton, 2016 ONSC 5827 at para. 18;  Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69.

This list of considerations overlaps significantly and not surprisingly with the best interests factors outlined at section 24(3) of the CLRA.”

            B.J. v. D.M., 2023 ONCJ 515 (CanLII) at 38-40

“It is not the role of appellate courts to second-guess the weight assigned the items of evidence by the trier: Housen v. Nikolaisen, 2002 SCC 33, para. 23.  In particular, the fact that an alternative factual finding could be reached based on a different ascription of weight by an appellate court does not mean that a palpable and overriding error has been made: Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33.  It is the trier of fact’s discretion to determine what areas of the evidence should be included in their reasons.  The trier is not obliged to reconcile every frailty in the evidence: R. v. Channani, 2020 ONSC 7168, para. 30.  Failure to mention some aspects of the evidence does not constitute an error, if the trier has grappled with the substance of the live issues. R. v. T.C., 2020 ONCA 469 para. 25.

Okafor v. College of Physicians and Surgeons of Ontario, 2023 ONSC 6332 (CanLII) at 36

“The Supreme Court of Canada summarized as follows the principles applicable to a “purchase money resulting trust” in Nishi v. Rascal Trucking Ltd., 2013 SCC 33 at paras. 1-2 (“Nishi”):

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property.  Where the person advancing the funds is unrelated to the person taking title, the law presumes 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.  This is called the presumption of resulting trust.

The presumption can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title.  While rebutting the presumption requires evidence of the intention of the person who advanced the funds at the time of the advance, after the fact evidence can be admitted so long as the trier of fact is careful to consider the possibility of self-serving changes in intention over time.  [Emphasis in the original.]

When there is no evidence of a gratuitous transfer, the presumption of resulting trust does not apply: see Gill v. Gill, 2022 ONSC 4610 at para. 33.

As stated above, if the presumption of resulting trust applies, it can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title. There is a gift at law when the evidence demonstrates that, at the time of the transfer, the transferor intended the transferee to hold the beneficial interest in the property being purchased: see Nishi at para. 37.  A contribution to the purchase price without any intention to impose conditions or requirements is a legal gift: see Nishi at para. 31.

The courts have developed a list of relevant factors to consider when determining whether advances from parents to children constitute a loan or a gift.  The following factors have been identified:

a.    whether there are any contemporaneous documents evidencing a loan;

b.    whether the manner of repayment is specified;

c.    whether there is security held for the loan;

d.    whether there are advances to one child and not others, or advances of unequal amounts to various children;

e.    whether there has been any demand for payment before the separation of the parties;

f.     whether there has been any partial repayment; and

g    whether there was any expectation, or likelihood, of repayment.

See Locke v. Locke, 2000 BCSC 1300 at para. 20 and Chao v. Chao, 2017 ONCA 701 at para. 54.”

          Gomes v. Da Silva, 2023 ONSC 6392 (CanLII) at 108-111

“Subrule 24(1) creates a presumption of costs in favour of the successful party. There are two schools of thought regarding the appropriate approach to determination of a litigant’s success.  Some judges have held that settlement offers are the yardstick by which success at trial should be measured: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), at para. 7.  Others have held that success should be measured by comparing the outcome at trial with the relief sought by the parties in the litigation, rather than with the terms of any offers: Lazare v Heitner, 2018 ONSC 4861, at para. 16; Guo v. Li, Li and Zhang, 2020 ONSC 2435, at para. 17.  I agree with the latter approach.

Success should be measured by comparing the positions of the parties on the issues litigated with the orders made.  For the reasons articulated by my colleague Kurz, J. in DeSantis v. Hood, 2021 ONSC 5496, at paras. 40 to 53, I find that offers to settle are not a factor in the determination of success in a proceeding.  As will be explained below, settlement offers are nevertheless an important consideration in assessing both liability for costs and quantum of costs.”

          Saroli v. Saroli, 2021 ONSC 7491 (CanLII) at 7-8