Siegel's Family Court Calendar

“In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:

1. 1. 1. 1. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available;
         2. The claimant must demonstrate that he or she is incapable of funding the requested amounts;
         3. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.

The court in Stuart added that:

9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

However:

10) An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

Regarding Part 1 of the test, the court in Stuart said at paragraph 11:

11) Certainly the proof of the necessity of interim disbursements would be critical  to  the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:

1. 1. 1. 1.    There was no affidavit from counsel regarding outstanding fees;
         2.    There was no evidence of the prospective costs of the case.”

Malette v. Malette, 2019 ONSC 3448 (CanLII) at 68-72

“Counsel for the wife referred me to the case of Ganie v. Ganie, 2019 ONSC 1128, in which Justice L. Shaw summarized the principles applicable to claims for occupation rent.  At para. 287 and 288, the court stated:

287      In Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49-50, Osborne J.A. held that a judge has jurisdiction to order that occupation rent be paid if it is reasonable and equitable to do so. The relevant factors to be considered will vary from case to case. However, in a family law context, some factors are consistently taken into account such as: (a) the timing of the claim for occupation rent; (b) the duration of the occupancy; (c) the inability of the non-resident spouse to realize on his or her equity in the property; (d) any reasonable credits to be set off against occupation rent; and (e) any other competing claims in the litigation. The weight to be given to these and other relevant factors is a matter for the judge to determine.

288      In Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.J.), Quinn J., after reviewing the jurisprudence, stated at para. 53, that the following factors must be considered in making an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) the conduct of the occupying spouse, including the failure to pay support;

(c) delay in making the claim;

(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f)  whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) whether the occupying spouse has increased the selling value of the property; and

(i)  ouster is not required.”

Armstrong v. Armstrong, 2019 ONSC 3227 (CanLII) at 22.

June 2, 2020 – Joint Custody & Parallel Parenting

“The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.

Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.”

Ursic v. Ursic, 2006 CanLII 18349 (ON CA) at 25-26

“The Family Responsibility Office asks for an order that the Respondent be incarcerated for failing to comply with a final default order of September 23, 2015.  He was served with a notice of motion dated October 20, 2016 seeking a warrant of committal.  Even with certain credits, FRO says there is still more than $4,000.00 owing.  Today is the 11^th appearance of the motion for warrant of committal.

…

The Respondent is self-represented.  Sometimes he misses court, but on those occasions when he has attended he has previously been assisted by duty counsel.

Today however, he was able to get some advice from duty counsel in the duty counsel office.  However, he was advised that duty counsel would not be attending with him in the courtroom, during the hearing to determine whether he is to be incarcerated.

I stood the matter down and invited duty counsel Mr. Mitrinandan to attend to explain Legal Aid’s position.  He spoke to his supervisor and confirmed that Legal Aid’s policy is not to represent parties in court during hearings to determine whether they are to be incarcerated, even if (as was the case with this Respondent) they otherwise qualify financially for duty counsel assistance.

Mr. Mitrinandan was quite respectful and cooperative and indicated that he would assist the Respondent if the court ordered him to do so.  I indicated that I was not ordering duty counsel to participate.  I was requesting it because I thought it was the right thing to do.

Accordingly, we have a policy issue which takes me by surprise.

Legal Aid routinely has duty counsel assist parties in criminal court to try to get them out of jail, at bail hearings.

Legal Aid routinely has duty counsel assist parties in family court, for contested motions and for conferences dealing with sometimes extremely trivial and superficial matters.

It seems inconsistent – and grossly unfair – that when the Respondent in this case is facing the possibility of incarceration – the most drastic step the state can take – Legal Aid suddenly says he’s on his own.  I would have thought that dealing with someone’s liberty is probably the most important type of case where Legal Aid should be involved.

The lawyers before me today didn’t create this mess, and apparently they don’t have the ability to resolve it.

But this court has to ensure that the process is fair.  And I don’t think it is fair to have the Respondent represent himself (without proper legal advice which is readily available) at a hearing where the state is asking to put him in jail.

The matter will have to be adjourned while Legal Aid Ontario (hopefully) reconsiders its policy.”

         FRO v. Wilson, 2018 ONSC 3494 (CanLII) at 1, 4-14

“The court in Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117 (Ont. H.C.), aff’d [1992] O.J. No. 3563 (Ont. C.A.), set out principles to consider when the date of separation is disputed (paras. 6-8):

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (S.C.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium (Dupere) or of repudiating the marital relationship: Mayberry v. Mayberry, 1971 CanLII 717 (ON CA), [1971] 2 O.R. 378, 3 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).

(3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere; Cooper; Mayberry.

(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: Cooper; Mayberry; McKenna v. McKenna (1974), 19 R.F.L. 357, 10 N.S.R. (2d) 268 (C.A.); Vogel v. Vogel (1988), 18 R.F.L. (3d) 445 (Ont. H.C.).

(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna.

1. 1. 1. 7. Under the Family Law Act, the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent: Czepa v. Czepa(1988), 16 R.F.L. (3d) 191 (Ont. H.C.); Vogel v. Vogel; Caratun v. Caratun (1987), 1987 CanLII 4094 (ON SC), 61 O.R. (2d) 359, 9 R.F.L. (3d) 337, 28 E.T.R. 59, 43 D.L.R. (4th) 398 (H.C.). An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns: Czepa. If a mediator is consulted, the purpose for which the mediator was consulted may also be of assistance: Garnick v. Garnick, [1988] W.D.F.L. 150 (Ont. H.C.).
         8. When a spouse makes plans for his or her assets as a separated person the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act. “One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”: Caratunat p. 364….”

T.N.F. v. M.J.V.A., 2018 ONSC 3310 (CanLII) at 15

“In Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 39, the court stated:

While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family take priority over any subsequent obligations), inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family. [Emphasis Added]

As explained in Fisher, and also in Dean v. Dean, [2016] O.J. No. 3521 (Div. Ct.) at para. 83, an obligation to a second family must be considered in context.  For example, was it a voluntary assumption of an obligation for a second family when the payor knows, or ought to have known, of his pre-existing obligation to his first family.  Similarly the court should consider whether there is any evidence that the payor’s obligations to his first family will impoverish his second family.”

Oja v. Oja, 2019 ONSC 3277 (CanLII) at 34-35

“Bad faith is not simply bad judgment or negligence. In S. (C.) v. S. (M.) [2007 CarswellOnt 3485 (Ont. S.C.J.)], 2007 CanLII 20279 at paras. 16-18 and 24, Perkins J. held that bad faith within the meaning of Rule 24(8) encompasses:

• • • behaviour shown to be carried out with intent to:

(a) inflict financial or emotional harm on the other party or other persons affected by the behavior;

(b) to conceal information relevant to the issues; or

(c) to deceive the other party or the court;

• • • behaviour relating to the issues at stake in the case or the conduct of the case;
    • costs incurred in relation to the issues affected by the bad faith; and
    • the essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.”

Goldstein v. Walsh, 2019 ONSC 3174 (CanLII) at 8

“Courts have consistently found that it is reasonable that adult children contribute towards the cost of their post-secondary education, either through student loans, part-time work, summer employment, grants, scholarships, or bursaries, or some combination thereof. However, as set out in Rebenchuk v. Rebenchuk, 2007 MBCA 22, each case depends on its own unique facts, and there are no hard and fast rules for how much the adult child should contribute. The percentage that adult children are required to contribute depends on the circumstances of the child and the parents, including the overall cost of the program, the parents’ incomes, and the adult child’s resources.  The Court stated:

…it is neither desirable nor possible to set forth “bright line” rules that enable judges to determine with mathematical certainty questions of entitlement and the amount for the support of adult children pursuing post-secondary education. This is because of the fact-driven basis upon which all such decisions are made…. there is still an element of judicial discretion. This, in my opinion, is as it should be. See paragraph 97.

Cases suggest that a child’s reasonable contribution to the cost of post-secondary expenses is between 25% – 50%, although in some cases, children are required to contribute as much as 100% (See for example Razavi-Brahimi v. Ershadi, 2007 CarswellOnt 6222 and Lewi v. Lewi 2006 CarswellOnt 3214).  Again, each case depends on its own facts.”

         Alalouf v. Sumar, 2017 ONSC 3043 (CanLII) at 225-226

“I accept the submission of counsel for the respondent that, because of the child support, the SSAGs suggest that no range of spousal support would be payable in 2011 on the incomes of the parties.

It has been observed repeatedly that the SSAG’s do not create an entitlement to spousal support just because they generate a suggested quantum or range. Entitlement is a threshold issue when using the SSAG’s. This case tests the other side of that coin. If the SSAG’s suggest no range of spousal support does that imply no entitlement?

Clearly not. For example, a spouse may have an entitlement to spousal support that is merely postponed while child support is in play. The unusual facts in this case provide another example. A lump sum for spousal support may be the best reflection of the objectives and factors enumerated in s. 15 of the Divorce Act.”

         Heffren v. Silverthorn, 2017 ONSC 3122 (CanLII) at 56-58

“I agree with the appellant’s submission that D.B.S., supra, has made some changes to the legal regime that was in effect in Ontario at the time of the trial decision. In light of D.B.S., it is now clear that the trial judge erred in concluding the respondent had not engaged in blameworthy conduct. In D.B.S., Bastarache J. indicated that any conduct that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support should be characterized as blameworthy conduct. While there is a presumption that the payor parent is acting reasonably by complying with the terms of a previous court order or agreement, this presumption may be rebutted where the change in circumstances is sufficiently pronounced. In determining the reasonability of the payor parent’s belief that his or her obligations were being met, the court should compare the amount the parent actually paid with how much he or she should have paid.

Applying this approach to this case, the respondent’s failure to report the increase in his income must be seen as blameworthy conduct given the magnitude of that increase.

The respondent’s blameworthy conduct in failing to report the increase in his income militates in favour of a retroactive award, but it is not determinative. It is only one of four factors Bastarache J. identified, at paras. 100-16, to be considered:

1. 1. Reasonable excuse for why support was not sought earlier
   2. Conduct of the payor parent
   3. Circumstances of the child
   4. Hardship occasioned by a retroactive award[.]

Importantly, Bastarache J. stressed at para. 99 of D.B.S., supra, “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.”

Baldwin v. Funston, 2007 ONCA 381 (CanLII) at 18-21