Siegel's Family Court Calendar

“Before further analyzing the issue, I note that I raised with counsel the fact that the parties’ marriage lasted only about 3.5 years. I questioned whether that fact in itself may be sufficient to reduce the Applicant’s claim for equalization in light of s. 5(6)(e). That provision allows a court to consider unconscionability within the context of “a period of cohabitation that is less than five years”. Having received the Applicant’s submissions, I am satisfied that the provision looks to a period of cohabitation, not marriage: Pope v. Pope, 1999 CanLII 2278 (ON CA), [1999] O.J. No. 242; 170 D.L.R. (4th) 89 (Ont. C.A.), at para. 32; Janjua v. Khan, 2013 ONSC 44, at para. 60. Here, the period of cohabitation was seven years, including the cohabitation during marriage. Thus s. 5(6)(e) does not apply to diminish the Applicant’s claim to equalization or unequal division of the parties’ NFPs.”

            Daciuk v. Daciuk, 2023 ONSC 70 (CanLII) at 22

“The term “parent” is defined in Part V, CHILD PROTECTION, Section 74(1) of the CYFSA.  For the purposes of this proceeding, the relevant portions are as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. 1. 1. 1. 1. 1. 5. An individual who has lawful custody of the child.
                  6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

Counsel for J.A. refers to the Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Succession Law Reform Act to illustrate the various tests that are applicable in determining a non-biological person’s rights and obligations to a child.

Counsel for J.A. alleges that as J.A. is a stepfather of A.H.H. and consequently has rights as applicable under the Divorce Act and in the Children’s Law Reform Act. Counsel for the mother submits that the term “settled intention” is akin to the term being found in “loco parentis”.

As this is a child protection matter, I find that the appropriate definition of “parent” in Section 74(1) of the CYFSA is the applicable test.

I find J.A. must provide prove, on a balance of probabilities, that he has demonstrated a settled intention to treat A.H.H. as his own in the 12 months prior to the commencement of the child protection proceedings or that he had lawful custody.

I accept that the decision to declare J.A. a “parent” within section 74(1) of the CYFSA is discretionary and the court must consider all of the relevant factors on the facts of each case in exercising that discretion.

I agree with the position of the CAS that the issue of settled intention was addressed by the court in a 2002 decision in Children’s Aid Society of Haldimand-Norfolk v A. (LM) 2002 CanLII 78100 (ON CJ), 33 RFL (5th) 54. I agree that the factors set out by the court in paragraphs 16 and 17, although under the previous legislation, is applicable under the current legislation including:

1. 1. 1. 1. 16. The overriding onus rests with the applicant the Society. Intention is in dispute and therefore, individual facts of this individual case require that it be dealt with its own merits. The Society must show more than a conduct of common courtesy or hospitality on the part of the respondent Mr. Robert A. The facts of family life established by evidence must show a pattern of responsibility for the child by the parent arising out of a demonstrated settled intention consciously formed and firmly established. The onus to rebut an existing settled intention rests with the respondent Mr. Robert A. and it is a heavy one. See Spring and Spring, supra, and Cassar-Fleming v. Fleming(1996), 1996 CanLII 19729 (ON SC), 20 R.F.L. (4th) 201, [1996] OJ No 675, 1996 CarswellOnt 789 (Ont. Gen. Div.).
            17. Here, the length of cohabitation in a shared residence, common surname, responsibility for all expenses over a lengthy time, and a history of Children’s Aid Society material showing shared parenting for Amelia Rose E. — all show a long-term commitment to Amelia Rose E. by the respondent Mr. Robert A.’s demonstration of a settled intention to treat her as a member of his own family. The onus with respect to the Children’s Aid Society case is met and the fact of settled intention is not rebutted by the respondent Mr. Robert A.

In Spring v Spring [1987] OJ No 2655, the court considered various factors in determining settled intention, including the place where the child live, the manner in which expenses of the child were discharged, the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled” denoted quality and not duration and once settled intention has been demonstrated, a change in that intention does not negate the obligation of support.”

Children’s Aid Society of Ottawa v. E.V.B.H. et J.A., 2024 ONSC 891 (CanLII) at 21-28

“In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:

Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.”

          A.P. v. L.K., 2021 ONSC 150 (CanLII) at 211

“When income is imputed to make the original support order, the Supreme Court stated in Colucci at para. 63:

         [63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).”

Tyndall v. Tyndall, 2022 ONSC 131 (CanLII) at 67

“With respect to the appellant’s first ground of appeal, the video recording made by the appellant confirmed the respondent’s acknowledgement that he had signed the August 2 Document. However, the purpose of the formal requirements in s. 55(1) of the FLA is not just to “provide proof that [a document] was in fact signed by the parties”, but also to “ensure a measure of formality in the execution of a domestic contract”, and to “avoid ‘kitchen table’ agreements”: Gallacher, at para. 24 (citations omitted). As Pepall J.A. explained in Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721, at para. 78:

The purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed: see A. Swan & J. Adamski, Canadian Contract Law, 3rd ed. [Toronto: LexisNexis Canada Inc., 2012], at para. 5.50.”

              El Rassi-Wright v. Arnold, 2024 ONCA 2 (CanLII) at 14

“However, the respondent should understand the nature of an irrevocable beneficiary designation, as he appears to believe that this means that the designation can never be changed. That is generally not accurate. Rather, it means that, where the life insurance is security for support, the designation cannot be changed without the consent of the beneficiary, an Arbitration Award, or an Order of the Court. In other words, if the term is changed at their final arbitration or at trial, or if the parties agree to a change in writing, the designation can typically be changed with the insurance company.”

          van Rhijn v. van Rhijn, 2020 ONSC 8032 (CanLII) at 54

“In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 at paras. 20-21 (“Gronnerud”), Major J. discussed the criteria for appointing a litigation guardian.  He stated the following:

The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1).  The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person.  Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action.  In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult.  A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf.  Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

It is acceptable in most cases, and perhaps desirable in some cases, to have a trusted family member or a person with close ties to the dependent adult act as litigation guardian.  […]   However, there are exceptions.  One such exception is the situation currently presented by this appeal, in which there is a particularly acrimonious and long-standing dispute among the children concerning their dead parent’s estate.  In such cases, the indifference required to be a litigation guardian is clearly absent.

The case law applying Gronnerud in Ontario confirms that there is no significant difference between an “indifference approach” and a “conflict of interest approach”: see Zabawskyj v. Zabawskyj, 2008 CanLII 19248 at para. 29 (Ont. S.C.J.) (“Zabawskyj”).  Thus, a court must ascertain whether the financial interests of the proposed litigation guardian in respect of the litigation might be adverse to the interests of the party under a disability: see Zabawskyj at para. 30.  Ultimately, a litigation guardian must act in the best interests of the party under disability.

The criteria set out in Gronnerud is consistent with the requirements and powers contained in Rule 7 of the Rules of Civil Procedure, including: (a) the requirement that the litigation guardian has no interest in the proceeding adverse to that of the party under disability (Rules 7.02(2)(g) and 7.03(10)(i)(iii)); (b) the requirement that the litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (Rule 7.05(2)); and (c) the power of the court to substitute a new person as litigation guardian where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability (Rule 7.06(2)).”

          Saing v. Saing, 2022 ONSC 7341 (CanLII) at 48-50

“Courts are cautious about permitting temporary moves in mobility cases, because if later reversed, it will result in further disruption to the child. When determining whether to permit the relocation of a child on a temporary basis, there are some additional factors to consider. These factors were set out in Plumley v. Plumley, 1999 CanLII 13990 (Ont. S.C.), at para.17:

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

b.   There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, 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 probability that the custodial parent’s position will prevail at a trial.

The court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate: Divorce Act, s. 16.92(2). In Scott v. MacLean, 2020 ABCA 173, 7 Alta. L.R. (7th) 225, at para. 11, the Alberta Court of Appeal explained:

The law is clear that the options being considered are not the move versus the status quo. The parent’s move is happening, or has happened. As was noted by this court in MacPhail at paras 44-45, “Canadians have the right to choose to separate and divorce, and they have the right relocate”; it not for the court to opine that it would be better if things remained the same. The issue the court must grapple with is: in which of the new locations, and with which parent, are the best interests of the children met.

Pursuant to s. 16.93(2) of the Divorce Act, the father has the burden of proving that the relocation would not be in the best interests of the child because the child spends the vast majority of his time with the mother. However, under s. 16.94, a court may decide not to apply s. 16.93(2) if the order being requested is an interim order. Further, where there is a pre-existing interim parenting order, the court may also decide that both parties have the burden of proving whether, or not, the relocation is in the best interests of the child.”

          Sobeck v. Rawlinson, 2023 ONSC 7266 (CanLII) at 15-17

“As set out in Wilson [v. Kovalev, 2016 ONSC 163], at para. 10, there are several grounds upon which the court will decline to recognize a foreign divorce:

At common law, there are presumptions in favour of the validity of a foreign divorce decree.  Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, 1976 CanLII 29 (SCC), [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (S.C.J.); Janes v. Pardo, Supra.)  The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:

1. 1. 1. 1. 1. 1. 1. The Respondent did not receive notice of the Divorce Application;
                  2. The foreign divorce is contrary to Canadian public policy;
                  3. The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
                  4. Where there is evidence of fraud going to the jurisdiction of the granting authority; or
                  5. There was a denial of natural justice by the granting authority in making the divorce order.

The question of when the court ought to invoke the defence of public policy was addressed by the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. The Supreme Court stated, at para. 71, that “the public policy defence turns on whether the foreign law is contrary to our view of basic morality.”  Further, at para. 76, an argument based on public policy “should not simply succeed for the sole reason that the foreign jurisdiction would not (or did not) yield the same result as might occur in Ontario or Canada.” The Supreme Court of Canada clarified, at para. 75, that the defence of public policy “is not a remedy to be used lightly” and it should have a “narrow application”.

There have been cases in Canada where the courts have refused to recognize a foreign divorce based on public policy grounds. The applicant points to Zhang v. Lin, 2010 ABQB 420, 92 R.F.L. (6^th) 138 and Marzara v. Marzara, 2011 BCSC 408, [2011] B.C.J. No. 579.”

Vyazemskaya v. Safin, 2022 ONSC 7311 (CanLII) at 26-28

“We understand the appellant’s frustration about the delay in dealing with her spousal support application. However, we are unable on this record to make an order for spousal support. Moreover, the trial judge was correct to state that the appellant’s financial claims should be heard in a single court in accordance with s. 2(2) of the Family Law Act, R.S.O. 1990, c. F3, which provides that:

[N]o person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court’s opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

These provisions reflect both the inefficiency and injustice of determining interrelated financial claims under the Family Law Act separately at two different courts.”

          Tran v. Taylor, 2023 ONCA 858 (CanLII) at 5-6