Siegel's Family Court Calendar

“Everyone is familiar with the importance of financial disclosure to family law litigation: the failure to make this disclosure “impedes the progress of the action, causes delay”, prejudices the requesting party, and wastes judicial time, and stalls disposition of the proceeding. See Roberts v Roberts, 2015 ONCA 450, at para 12.

But the failure to properly litigate these motions is part of the problem. Parties can disagree about the relevance and scope of disclosure. But they should do reasonably—they and their lawyers have to cooperate and communicate about the issues, no matter their feelings about the other side. Anything less will just cost money, take time, and frustrate the process.”

          Johal v. Johal, 2024 ONSC 4844 (CanLII) at 28-29

“The relevant principles surrounding a claim for constructive trust were succinctly set out in Stec v. Blair, 2021 ONSC 6212, at paras. 79-81:

[79]     In order to succeed in her request for an interest in the Property, Hana must first show that Shawn was unjustly enriched.  Unjust enrichment is found when the claiming party can show that the other party is enriched by his or her contributions, that he or she has suffered a corresponding deprivation, and there is no juristic reason for this result: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32.

[80]   If an unjust enrichment is established, the court must then determine the appropriate remedy. The first remedy the court should consider is a monetary remedy.  A monetary remedy can be calculated not only on the basis of value received or a quantum meruit calculation, but where a joint family venture is found, the “value survived” approach may be used.  In the later case, the unjust enrichment is the retention of inappropriately disproportionate amount of wealth by one party when the parties have engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the clamant to the accumulation of the wealth: Kerr, paras. 47, 55, 80-87, Lesko v. Lesko, 2021 ONCA 369, 57 R.F.L (8th) 305, at para. 14, Martin v. Sansome, 2014 ONSC 14, 118 O.R. (3d) 522, at para. 52.

[81] Finally, if and only if monetary damages is inappropriate or insufficient and here is a sufficient substantial and direct link or casual connection between the contributions and the acquisition, preservation, maintenance or improvement of the property, the court may make a proprietary award by impressing the property with a constructive trust. The onus is on the claimant to show that the monetary award is insufficient. The constructive trust interest should be proportionate to the claimant’s contributions: Lesko at para. 14, Martin at para. 58, Kerr at paras. 50- 51, Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R 303, at para. 91.

Hence, a claim of unjust enrichment can be established when the following three elements are found: (i) an enrichment of or benefit to Susan; (ii) a corresponding deprivation of Jaime; and (iii) the absence of a juristic reason for the enrichment.  The remedy for unjust enrichment is a monetary award, before imposing a constructive trust: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522.

As set out in McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66, “in the vast majority of cases, any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act” and that mechanism is by way of an equalization payment.”

Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 35-37

“The Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, the reasons in which were released on May 20, 2022, set out the framework for determining whether relocation is in the best interests of a child in light of the developments in the case law and legislation since Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, was decided. Karakatsanis J, writing for the majority, provided this summary:

[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.

[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).

[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.

[151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.

[152] 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. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:

• • • • •       the reasons for the relocation;
        •       the impact of the relocation on the child;
        •       the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
        •       the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
        •       the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
        •       whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

[155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward.

The Berry v. Berry case, 2011 ONCA 750, is instructive.  In it, the court was dealing with a situation wherein the child had been living approximately half of the time with each parent in Toronto since their separation.  The issue was whether a relocation with the mother to Kingston after which he would see his father only every second weekend was in the best interest of the child.  The court found that “reducing the time the child lives with the father from approximately one half of the time to every second weekend and shuttling the child back and forth between two cities is “highly disruptive” and “did not attach proper weight to the maximum contact principle”: Berry v. Berry at para. 27.

In regard to this, I note that, although the Divorce Act has since been amended, the court is now, as it was then, required to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child: See also B.V. v. P.V. 2012 ONCA 262.

The legal principles (first set out in Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. 3234 at para. 7) applicable to interim motions regarding mobility are:

1. 1. 1. 1. 1.    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.
            2.    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.
            3.    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. See also Cesare v. Cesare2024 ONSC 34, para. 70

The importance of maintaining the status quo in interim matters was explained by J. Wright J. in Kimpton v. Kimpton [2002] O.J. 5367 at paras. 1 and 2, as follows:

1)      There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof.  On this consideration hangs all other considerations.  On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo.  This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, 1969 CanLII 544 (ON SC), [1969] 2 O.R. 631, (aff’d by Laskin J.A. at 1969 CanLII 438 (ON CA), [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 1992 CanLII 14032 (NS CA), 38 R.F.L. (3d) 373.  By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.  See on this issue Irwin v. Irwin (1986), 1986 CanLII 6303 (ON SC), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 1990 CanLII 7339 (SK KB), 28 R.F.L. (3d) 416.

2)      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.

This passage continues to be referred to in the case law.  For example, Garduno v. Golec [2024] O.J. 2735, para. 45.

This was explained further by MGJ Quigley J. in Datars v. Graham (2007), 2007 CanLII 34430 (ON SC), 41 RFL (6^th) 51 (Ontario SCJ), para.16:

The problem that this court faces on this motion [mobility]…is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”

          Belhadj v. Meddah, 2024 ONSC 4904 (CanLII) at 23-28

“Section 249(4) of the OBCA states as follows:

In an application made or an action brought or intervened in under this Part, the court may at any time order the corporation or its affiliate to pay to the complainant interim costs, including reasonable legal fees and disbursements, for which interim costs the complainant may be held accountable to the corporation or its affiliate upon final disposition of the application or action.

In Alles v. Maurice, 1992 CarswellOnt 132 (Ont. Gen. Div.), Blair, J., as he then was, articulated the test a shareholder must meet in order to obtain an interim costs order:

i.   There is a case of sufficient merit to warrant pursuit; and

ii.  The complainant shareholder is genuinely infinancial circumstances which, but for an order under s. 249(4), would preclude the claim from being pursued: para 9.

As set out in Hames v. Greenberg, 2014 ONSC 245 (S.C.J.), the Alles test is a low bar to meet and does not require the complainant shareholder to make out a prima facie case of oppression.  Rather, a judge must be “satisfied that the claims advanced are well over the “frivolous and vexatious” marker – after all, money is being asked for – but without the need of establishing a claim on a balance of probabilities: para 22.

The first stage of the test may be satisfied even where the parties have put forward conflicting evidence on the merits of the oppression claim. The question is simply whether the complainant shareholder has established a case of sufficient merit to warrant pursuit: Alles, at para 19; Hames, at paras 37-38 and 43; Giffin v. Sootiens, 2010 NSSC 438 (CanLII) at paras 44-45.

The complainant shareholder must lack the financial resources to fund the litigation in order for interim costs to be awarded. However, impecuniosity is not a pre-condition to obtaining an order. A complainant shareholder is not required to sell his/her home, de-register RRSPs, or unreasonably reduce his/her standard of living in order to fund the litigation. Further, a complainant shareholder may qualify for interim costs because he/she is unable to fund litigation for the reason that his/her financial resources are tied up in the company that is the subject of the litigation: Alles, at para 19, Giffin, at paras 31, 34-37, 58 and 63.

In Hames, the court awarded interim costs to a complainant even though he had approximately $300,000 in assets, some of which were RRIFs. The complainant had not made any efforts to borrow money or mortgage his property to fund the litigation, but the court concluded that it was doubtful that he had the ability to raise the funds being requested on the motion. The applicant was elderly, did not have employment income, and had previously drawn down a line of credit. His legal fees were an obstacle to him bringing forward his meritorious oppression claim, so an award of interim costs was warranted: Hames, para 62-85.

When granting an order for interim costs, the Court is to consider the value of the complainant shareholder’s shares. In other words, the Court may consider the fact that, should the complainant shareholder fail to make out his/her case, the amount of interim costs awarded could be applied against the value of the complainant shareholder’s shareholdings: Hames, at para. 77.

          John v. John, 2020 ONSC 5337 (CanLII) at 79-85

“Reasons serve three main functions:  they communicate to the affected parties why the decision was made, they provide accountability, and they permit effective appellate review.  They also focus the decision-maker, to help ensure fair and accurate decision-making.  See R. v. R.E.M., 2008 SCC 51 ¶ 11, 12; see also R. v. Sheppard, 2002 SCC 26 ¶ 15, 24. 

At ¶35, 43, 44 of  R. v. R.E.M., the Supreme Court summarized three principles that guide appellate courts when considering what is required of a trier in terms of reasons.  First, appellate courts should take a functional, substantive approach to the sufficiency of reasons.  They are to read the reasons as a whole, in the context of the evidence and arguments at trial, and with an appreciation for the purposes or functions for which they are delivered.

Second, the basis for the decision must be “intelligible”, meaning capable of being made out, and logically connected to its basis.  The trier need not set out his or her process in arriving at the decision in detail, nor must he or she necessarily provide detailed recitations of the evidence or the law.  Rather, the reasons must show, when read in context of the record and the submissions, that the trier has “seized the substance of the matter”.  The degree of detail in any particular case may vary with the circumstances.

Third, to determine whether the logical connection exists, the appellate court should look to the evidence, the submissions and the history of the trial to determine the “live issues” as they emerged during the trial.

An appellate court must start from a stance of deference towards the trier’s perception of the facts.  It must ask itself whether the reasons in context explains the basis for the decision.  If the evidence is contradictory, it should ask itself whether the trier recognized and dealt with the contradictions.  It should do so similarly with difficult or novel questions of law.  The critical question to ask is whether the reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?  If the appellate court concludes that the trier, on the record as a whole, did not deal with the substance of a critical issue, then it may conclude that the deficiency constitutes an error in law.  See R. v. R.E.M. ¶ 52-57.

See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ¶ 79-91.”

Farmer v. Farmer, 2021 ONSC 5913 (CanLII) at 111-116

“Lump sum spousal support payments are not limited to “very unusual circumstances as a matter of principle.” However, for practical reasons, “most spousal support orders will be in the form of periodic payments”:  Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221, at para. 70.

The jurisprudence has listed various advantages and disadvantages that the court should consider in balance in determining if a lump sum award is appropriate, noting however that the advantages and disadvantages are highly variable and case specific. Such factors are noted in Davis v. Crawford at paras. 66-68, 70-74:

1. 1. 1. 1. 1. Whether the payor has the ability to make the lump sum payment without affecting their future self-sufficiency.
            2. The benefit of a clean break terminating ongoing contact.
            3. If the lump sum could provide capital to meet an immediate need of a dependant spouse.
            4. If there is a real risk of non-payment if a lump sum is not ordered.
            5. If the need and means of the party’s change, the parties will be deprived of the right to apply for a variation.
            6. The difficulties inherent in calculating a lump sum award in place of ongoing indefinite periodic spousal support.”

            Rus v. Rus, 2022 ONSC 5041 (CanLII) at 34-35

“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.   where there is substantial compliance 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.   where there is substantial compliance 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)).

Courts are generally reluctant to authorize relocation on interim motions and the burden of proof on such motions is on the party seeking to change the status quo to prove that sufficient compelling circumstances exist to justify the relocation (see: Markowski v. Krochak, 2022 ONSC 2497, at para. 75).”

            Shearhart v. Shearhart, 2023 ONSC 4931 (CanLII) at 17-19

“Further, at the application hearing, Ian advanced a resulting trust claim concerning his repayment of Victoria’s indebtedness under the joint line of credit. As I have already mentioned, the application judge concluded that a presumption of resulting trust did not arise in Ian’s favour because, in his view, a presumption of resulting trust can apply only on the purchase or transfer of property, and not to a post-purchase reduction of liabilities associated with the purchase or transfer of property.

As I see it, there are several difficulties with the application judge’s analysis of this issue.

First, Ian’s repayment of the $1 million line of credit, established to facilitate the purchase of the Brookdale property, was gratuitous and directly linked to the acquisition of the house. The Supreme Court emphasized in Kerr, at paras. 18 and 19, citing its earlier decision in Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at paras. 43-44 and 24, that in situations involving gratuitous transfers, as in this case, the governing consideration is the transferor’s actual intention. The intention of the transferor alone counts, as “[t]he point of the resulting trust is that the claimant is asking for his or her own property back”: Kerr, at para. 25. As Rothstein J. explained in Pecore, at para. 44, in such cases,

The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.

(Emphasis added) [page 716]

See, also, Andrade v. Andrade (2016), 131 O.R. (3d) 532, [2016] O.J. No. 2553, 2-2016 ONCA 368, at paras. 62 and 67. Further, it is the transferor’s actual intention at the time of transfer that is the critical consideration: Nishi v. Rascal Trucking Ltd., [2013] 2 S.C.R. 438, [2013] S.C.J. No. 33, 2013 SCC 33, at paras. 2, 30 and 41.

Kerr also instructs that, when a gratuitous transfer is made, the transferee bears the onus of demonstrating that a gift was intended. Failing such a demonstration, the transferred property is deemed to be held in trust by the transferee for the transferor, as beneficial owner.”

Chechui v. Nieman, 2017 ONCA 669 (CanLII) at 57-60

“Although it would no doubt further affirm the Minutes if the mother had negotiated through counsel, or obtained ILA, her lack of legal representation does not mean that the Minutes should automatically be set aside. In Pruss v. Pruss, 2000 CanLII 22454 (ON SC), [2000] O.J. No. 3662, the court upheld a separation agreement, despite the wife not having received legal advice. Granger J. noted that she had the knowledge she could obtain advice, and the opportunity to do so (at para. 28). Similarly, in Dereski v. Ellis, 2012 ONSC 5263, [2012] O.J. No. 4961, McEwen J. upheld Minutes of Settlement and the subsequent Order when negotiated by the husband after dismissing counsel. The court reviewed the emails between the husband and his spouse’s lawyer and found that the “give and take” and compromise between the parties suggested he knew the contents of the agreement well, despite not having counsel (at para. 25).”

              Armstrong v. Armstrong, 2021 ONSC 5774 (CanLII) at 44

“A parent has an obligation to support his or her dependent children: Family Law Act, R.S.O. 1990, c. F.3, s. 31(1).  A court is mandated to order child support payments in accordance with the appropriate child support guidelines, for the benefit of the child: Family Law Act, supra, s. 33(1)–(2), (7), (11)–(15); s. 34(1).

The presumptive quantum of support is the amount set out in the Child Support Guidelines, O.Reg. 391/97, s. 3(1).

A Court may make an order requiring a parent to contribute to a child’s “special” expenses: Child Support Guidelines, supra, section 7(1).

In court proceedings, parties face numerous obligations to provide prompt and full financial disclosure: Family Law Rules, supra, r. 13(1)–(1.1), (3.1)–(3.2), (5.0.2), (7).

A payor spouse has an ongoing obligation to disclose their income so that any child support payments properly reflect the amount owing under the Guidelines: Child Support Guidelines, supra, s. 24.1, s. 13(g).

Where a party fails to comply with the disclosure provisions of the Child Support Guidelines, the possible consequences to that party include:

a.   immediate judgment

b.  drawing of an adverse inference

c.   striking out of pleadings

d.   a contempt finding

e.   imputation of income

f.    costs on a full indemnity basis

Child Support Guidelines, supra, s. 19(1)(f), s. 22-24.

Similar consequences may flow from failing to comply with a disclosure order under the Family Law Rules: Family Law Rules, r. 1(8)-(8.1).”

            B.H.H. v. D.H., 2024 ONSC 4761 (CanLII) at 22-28