Siegel's Family Court Calendar

“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.

The status quo means “that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.

When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. See Saini v Tuli, 2021 ONSC 3413 at para 28.

The weighing process is necessarily fact specific. In Saini, the respondent sought to take the children in that case to California for over a month—she had to travel for work and did not believe the applicant could care for them while she was away. The court dismissed her motion because the travel was not essential for the children and the respondent could care for them.

In Yacoub v Yacoub, 2010 ONSC 4259, the respondent refused to consent to the children in that case traveling to Egypt with the applicant for a month. One of the concerns he raised was the risk they would not be returned to Canada—Justice McGee gave no effect to that submission because no supporting evidence was filed. Justice McGee held that the respondent’s other concerns (prepaid day camps and a pending piano exam) were outweighed by the “one time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel”. “Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family” (at para 21).

Mahadevan v Shankar, 2010 ONSC 5608, is like this case. There, the respondent wanted to take the 4-year-old child of the marriage to India for Diwali and to visit his family. The applicant refused consent because she feared the child would not be returned to Canada. In that case, the respondent had ties to Canada—he was a tenured professor at McMaster University and living with his new partner in Hamilton. Even then, Justice Pazaratz dismissed the motion because of the risk of abduction: “The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.”

            M.D. v. A.D., 2022 ONSC 5136 (CanLII) at 28-33

“Section 31(1) FLR prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt which in this case is the father. The standard of proof is the criminal standard of proof beyond a reasonable doubt: Moncur v Plante, 2021 ONCA 462 at para 10(1); Smith v Reynolds, 2018 ONSC 7706 at para 21.

To find civil contempt, the court must be satisfied that (1) the court order alleged to have been breached states clearly and unequivocally what should or should not be done; (2) that the person alleged to be in contempt had actual knowledge of the terms of the order; and (3)  that the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras 32 to 35; Moncur v Plante at para 10(1).  Unless the contempt motion satisfies all three criteria, the motion must be dismissed: Smith v Reynolds at para 22.

The contempt power is discretionary. Even after the three criteria are met, judges retain the discretion to decline to make a finding of contempt if to do so would work an injustice or if other alternatives exist: Moncur v Plante at para 10(2); Smith v Reynolds at para 23.

In exercising their discretion, judges must keep in mind that contempt is a remedy of last resort and contempt powers should be exercised sparingly: Carey v Laiken at paras 36-37. In family proceedings, judges should consider alternatives to finding contempt unless access problems or motions for enforcement have failed: Chong v Donnelly, 2019 ONCA 799 at paras 9-12;  Hefkey v Hefkey, 2013 ONCA 44 at para 3; Moncur v Plante at para 10(2); Ruffolo v David, 2019 ONCA 385, 25 R.F.L. (8^th) 144 at paras 18-19.

When the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Moncur v Plante at para 10(3); Ruffolo v David at para 19; Dunn v Shaw, 2021 ONSC 8286 at para 47.

Factors a court may consider in exercising its discretion before finding contempt include:

a.   whether the contemnor took reasonable steps in good faith to comply with the order: Carey v Laiken at para 37; Smith v Reynoldsat para 23;

b.   whether imposing contempt would work an injustice in the circumstances of the case: Carey v Laiken at para 37; Moncur v Plante at para 10(2);

c.   the presence of exigent or extenuating circumstances: Newstead v Hacey, 2019 ONSC 5213 at paras 12 and 30;

d.   whether alternatives exist such as finding a breach of the order and imposing other remedial options: Moncurat para 10(3) and 19; Dunn v Shaw at paras 33-34, 46; Jean v O’Callaghan, 2017 ONSC 4027 at paras 25 and 31; Hassan v Khalil, 2022 ONSC 3316 at paras 36 and 38; Ruffalo v David at para 19; and

e.   whether the defiant conduct is severe or significant: Jackson v Jackson2016 ONSC 3466 at para 56.

If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Ironside v Roskam, 2018 ONSC 247 at para 49. Rule 31(5) FLRs sets out the various remedies available for contempt: r. 31(5); see also Stone v. Stone, 2019 ONSC 3214.

Finally, unlike criminal contempt where the court’s jurisdiction may be penal, a court’s jurisdiction in finding civil contempt is primarily remedial and aimed at encouraging compliance with the court order: Kopaniak v MacLellan, 2002 CanLII 44919 at para 28.”

            Kim v. McIntosh, 2023 ONSC 5121 (CanLII) at 16-23

“Miglin articulates a two-stage inquiry in the face of an application for spousal support that is inconsistent with a pre-existing agreement between the parties. The first stage looks at the time the agreement was formed. The second considers all the circumstances at the time of the application.

At the first stage, the court must look at two things. First, it must consider “the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it”: Miglin, at para. 80. Circumstances less than “unconscionability” may be relevant, but a court should not presume an imbalance of power.

Second, once satisfied that there is no reason to discount an agreement due to conditions under which it was negotiated, the court must then inquire whether the substance of the agreement substantially complies with the overall objectives of the DA. Here, the court must look at the agreement in its totality, bearing in mind that all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin, at para. 84. If the court is satisfied that the circumstances under which the agreement was negotiated were satisfactory and the agreement was in substantial compliance with the general objectives of the DA at the time of creation, the court should defer to the parties’ wishes and give the agreement great weight: Miglin, at para. 87.

The second stage of the inquiry focuses on the circumstances surrounding the agreement at the time of the application for spousal support. If, and only if, the circumstances at the time of the application represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the DA, the court may be persuaded to give the agreement little weight: Miglin, at para. 91.”

          Faiello v. Faiello, 2019 ONCA 710 (CanLII) at 44-47

“A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child’s best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child’s other parent.”

            S. v. A., 2021 ONSC 5976 (CanLII) at 24

“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

Shokoufimogiman v. Bozorgi, 2022 ONSC 5057 (CanLII) at 32

“Section 113(8) of the CYFSA states that during a status review, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

There are two lines of authorities about the threshold to vary a supervision order in a status review pending its final resolution, one line of cases being more stringent than the other.  These lines of authorities consider the amount of threshold change that must be demonstrated, in the context of the statutory framework and policy considerations.  In so doing, courts also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.

At ¶ 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Sager J. summarized the two lines of authorities as follows:

[14]      One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.

[15]       The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See:  Kawartha-Haliburton Children’s Aid Society v. A.R. and D.F., 2020 ONSC 2738 (CanLII); Catholic Children’s Aid Society of Toronto v. K.G., 2020 ONCJ 208 (CanLII); CAS Algoma v. S.S., 2010 ONCJ 332 (CanLII); and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746 (CanLII).

[16]       The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See:  The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 (CanLII) and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435 (CanLII).

[17]           At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”

At ¶ 19-34, Sager J. determined that the more flexible approach should apply.  She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation.  In the end at ¶ 34 she wrote:

In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change.  However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time.  Hilliard J. referred to the test to change parenting time as being “significantly lower”.”

Dnaagdawenmag Binnoojiiyag Child & Family Services and S.S. and M.S., 2023 ONSC 5011 (CanLII) at 23-27

“Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave is required where the appeal is only as to a discretionary costs order. However, when “the disposition on appeal changes the decision under appeal, leave to appeal from a costs order is not necessary”: Tadayon v. Mohtashami, 2015 ONCA 777, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82.”

          Climans v. Latner, 2020 ONCA 554 (CanLII) at 83

“Viva voce evidence, in conjunction with whatever relevant documentary evidence exists, may ground a claim for an exclusion.  For example, even though Goodyer v. Goodyer is a pro rata case, at para 83 Perkins J. said, “the individual assets in the investment account need not be traced with any degree of detail, so long as the history and continuity of the account as a whole are proved.”   Penny J. adopted a similar approach to the evidence in Ludmer v. Ludmer, a “common sense” case.  As did Simmons, J.A. in obiter in Townshend v. Townshend.”

          Farmer v. Farmer, 2021 ONSC 5913 (CanLII) at 84

“Given that the applicant is also claiming temporary spousal support, an alternate approach of reaching a fair and just determination of quantum of spousal support (since entitlement is conceded) is looking at the parties’ “means and needs”.

In Vermeire v. Bates, 2022 ONSC 1278 at para. 8 and 9, Fowler Byrne J. summarized the law in respect of interim spousal support as follows:

[8]      My authority to award interim spousal support order is found at s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The factors and objectives that I must consider under ss. 15.2(4) and 15.2(6) do not differentiate between interim and permanent spousal support orders. That being said, in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 24, Justice Chappel sets out the general principles that apply when dealing with motions for temporary spousal support (citations omitted):

1.                  The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum.  The merits of the case in its entirety are to be dealt with at trial.

2.                  In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.

3.                  The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.  That task is for the trial judge.

4.                  The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.

5.                  Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self sufficiency is of less importance.

In Driscoll v. Driscoll, 2009 CanLII 66373 (Ont. S.C.), Justice Lemon adopted the principles for temporary spousal support as set out in the British Columbia case of Robles v. Kohn, 2009 BCSC 1163:

a)      On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;

b)       An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;

c)      On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;

d)       The courts should not unduly emphasize any one of the statutory considerations above others;

e)      On interim applications the need to achieve economic self-sufficiency is often of less significance;

f)       Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

g)       Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

h)       Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

            Hohmeier v. Caputo, 2022 ONSC 4925 (CanLII) at 39-40

“Section 2(1) of the Divorce Act defines “relocation” as,

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order.

Section 16.9(1) of the Divorce Act provides that a person with parenting time or decision-making responsibility respecting a child of the marriage who intends to effect a relocation must provide at least 60 days’ prior notice of that intention, in a prescribed form, to anyone else who has parenting time, decision-making responsibility or contact under a contact order.

Pursuant to s. 16.91(1), a person who has given notice pursuant to s. 16.9 and intends to relocate a child is permitted to do so if: a) the court authorizes the relocation; or b) a recipient of the s. 16.9 notice does not object in the prescribed manner within 30 days of receipt of that notice and there is no order prohibiting the relocation.

In determining whether or not a relocation should be authorized, “the crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being”, which is a highly fact-specific and discretionary inquiry (see: Barendregt v Grebliunas, 2022 SCC 22, at para. 152).  The court must consider the best interests of the particular child in the particular circumstances of the case (see: Barendregt, at para. 123).

In determining the best interests of the child in relocation cases, the court must consider all factors related to the child’s circumstances, including, without limitation:

a.    the child’s views and preferences;

b.    the history of caregiving;

c.    any incidents of family violence;

d.    the reasons for the relocation;

e.    the impact of the relocation on the child;

f.    the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;

g.   the existence of a court order, arbitral award or agreement that specifies the geographic area in which the child is to reside;

h.   the reasonableness of the relocating party’s proposal to vary parenting time, decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and

i.    whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance,

(see: Barendregt, at paras.153-154).

The court is not to consider how the outcome of the relocation application would affect the parties’ relocation plans – e.g., whether the relocating party would relocate without the child or not relocate at all (see: Barendregt, at paras. 140 and 154).”

            Shearhart v. Shearhart, 2023 ONSC 4931 (CanLII) at 11-16