Siegel's Family Court Calendar

“In my endorsement dated December 18, 2017, I indicated that I intended to strike the respondent’s pleadings if he had not paid the cost award by January 31, 2018.  However, on January 16, 2018, the respondent made an assignment in bankruptcy.

The legal effect of the respondent filing an assignment in bankruptcy is that all enforcement of the cost decision of Justice Sheard is stayed by the operation of section 69.3(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, which provides that, on bankruptcy, no creditor has any remedy against the debtor or the debtor’s property or shall commence or continue any action for the recovery of a claim provable in bankruptcy until the trustee has been discharged.

Section 69.4 of the Bankruptcy and Insolvency Act reads as follows:

69.4    A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied:

(a)  that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or

(b) that it is equitable on other grounds to make such a declaration.

The stay of enforcement by the operation of the Bankruptcy and Insolvency Act can be lifted where a creditor or other person is likely to be materially prejudiced by the continuous operation of section 69.3 or where it is equitable on other grounds.  There is no application for stay before me.

The applicant submits that this matter is akin to the situation in Carpenter v. Carpenter, 2016 ONCA 313, where the Court of Appeal upheld the striking of a party’s pleadings for non-payment of costs.  This case is distinguishable from Carpenter on its facts.  The difference in that case was that the defaulting party went bankrupt after the decision to strike pleadings was made.  In this case, the bankruptcy occurred before this motion to strike his pleadings was decided

The actions of the respondent, in making an assignment in bankruptcy when he had consented to the costs of $6,500, are highly suspicious.  He never advised the applicant of his intention to make an assignment but the effect of the bankruptcy is that the enforcement of the cost award of Justice Sheard is stayed.

However, the applicant may participate in the respondent’s bankruptcy and oppose his discharge.  Where costs survive a bankruptcy, courts have ordered the discharged bankrupt to pay the outstanding costs and/or deposit a security for costs on new applications (see Martin (Shore)  v. Shore, 2004 CanLII 5060 (Ont. S.C.), Kordic v. Bernachi, 2006 CanLII 38875 (Ont. S.C.), Backman v. Backman (1998), 7 C.B.R. (4th) 55 (Ont. Gen. Div.)).”

Clark v. Moxley, 2018 ONSC 1948 (CanLII) at 19-25

“In Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722 (CanLII), at paras. 31-32, the Court of Appeal discussed the matters that a court should consider in deciding whether to exercise its discretion to hear a moot case:

31     The formulation of guidelines for the exercise of discretion in departing from the usual practice is informed by an examination of the rationalia underlying that practice. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reasons for adherence to the practice disappear or diminish. An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

32     Three basic rationalia underpin the mootness doctrine:

i) that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii) the concern for judicial economy; and

iii)  the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

At paragraph 36, the Court went on to state that consideration of these factor is not mechanical, rather “a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present”.

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 (CanLII) at 42-43

“In Cardinal Meat Specialists Ltd. v. Zies Foods Inc., 2014 ONSC 1107, Ricchetti J., in addressing the requirements of a Mareva injunction, wrote the following at paras. 50 and 51:

There are five requirements for a Mareva injunction:

(a) the plaintiff must make full and frank disclosure of all material matters within his or her knowledge;

(b) the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim and the amount thereof, and the points that could be fairly made against it by the defendant;

(c) the plaintiff must give grounds for believing that the defendant has assets in the jurisdiction;

(d) the plaintiff must give grounds for believing that there is a real risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded to him or her; and

(e) the plaintiff must give an undertaking as to damages.

A Mareva injunction grants the plaintiff a far reaching remedy and causes financial upheaval to the defendant(s) by tying up assets indefinitely, before the plaintiff’s claim has been determined on its merits. I recognize that a Mareva injunction should only be granted in exceptional and limited circumstances.  See: Aetna Financial Services v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 SCR 2.”

         Asselin-Kowalsky v. Kowalsky, 2019 ONSC 1767 (CanLII) at 10

“…In resolving disputes arising from the interpretation of contracts, the objective is to protect the reasonable expectations of the parties, as set out in the language of their agreement. In the absence of ambiguity in the words of the contract, parole evidence of the subjective intention of the parties has no place in the interpretive exercise: see Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, at paras. 54-56. The trial judge found that the Agreement reflected the DiDonatos’ expectations in a clear and unambiguous manner — neither party has challenged that conclusion before this court. On the contrary, in advancing her own interpretation of the Agreement, Ms. Turner maintains that it is not ambiguous. She thereby implicitly acknowledges the irrelevance of extrinsic evidence in this case.

Further, para. 28 of the Agreement sets out what is commonly referred to as an “entire agreement” clause. It provides as follows:

28. GENERAL

(1) There are no representations, collateral agreements, warranties or conditions affecting this Agreement

As Professor Swan states in Canadian Contract Law, 1st ed. (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 515:

The likelihood that a document will be held to be the final, integrated expression of the parties’ agreement will be increased if the document contains an “integration clause” or an “entire agreement” clause . . . . Where the parties have been advised by their solicitors and the agreement has been carefully negotiated, such a clause should be conclusive evidence that the document is the final and sole expression of the parties’ agreement. (Footnotes omitted)”

Turner v. DiDonato, 2009 ONCA 235 (CanLII) at 44-46

“The appellant also challenges the application judge’s treatment of the LTIP [long-term incentive plan] payment made to the respondent by his employer in November 2003.  The evidence at trial was that on execution of the retirement agreement between the respondent and his employer, the respondent’s unvested options were cancelled in accordance with the company’s usual practice on the departure of a senior executive.  The agreed LTIP payment represented the value of the respondent’s vested options.

In these circumstances, the application judge correctly recognized that s. 13 of Schedule III of the Child Support Guidelines, O. Reg. 391/97 was engaged.  That provision requires that the profits on the exercise of a stock option are to be brought into the recipient’s income in the year of exercise.  This is dispositive of the income allocation issue relating to the LTIP payment.”

         Pomozova v. Mann, 2010 ONCA 212 (CanLII) at 8-9

“A resulting trust arises when title to property is in one party’s name but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore, at para. 20.  When a parent gratuitously transfers property to his or her adult child, the law presumes that the child holds the property on resulting trust for the parent: Pecore, at para. 36.  The burden of rebutting the presumption is on the child.  In determining whether the presumption has been rebutted, the trial judge must begin his or her inquiry with the presumption and then weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the parent transferor’s actual intention at the time of transfer: Sawdon Estate, at paras. 67-71.

The kind of evidence relevant to determining the transferor’s actual intention at the time of transfer depends on the facts of the case: Pecore, at para. 55. A court may consider evidence of the transferor’s conduct after the transfer, so long as it is relevant to the transferor’s intention at the time of the transfer: Pecore, at para. 59.”

Mroz v. Mroz, 2015 ONCA 171 (CanLII) at 72-73

“The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it.  It can’t possibly be true.  Not if they’re funding cases like this.

The facts are simple.  There are no complicated legal issues.  Hardly worth a written endorsement, really.

But every now and then taxpayers ought to be told how their hard earned dollars are spent.

…

At the March 9, 2017 attendance, apart from paying for the lawyers, taxpayers also had to pay for the following government employees to be present in Courtroom #5 to deal with this matter:

a.    A Court Services Officer.

b.    A Court Reporter.

c.    A Court Registrar.

d.    And me.

I have no idea how much the other players in the courtroom get paid.  But as a Superior Court Judge I receive approximately $308,600.00 per year.  So you can see that not even counting overhead charges and administrative staff in the building, every hour of court time is hugely expensive.

Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid.  So they end up representing themselves in court.  Or facing financial reality and settling without going to court. 

But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible.  Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?

Which brings us to my particular frustration with this case.”

Abdulaali v. Salih, 2017 ONSC 1609 (CanLII) at 1-3 & 17-21

“With respect to under-employment or unemployment, the leading case in this area is the Ontario Court of Appeal decision in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] 61 O.R. (3d) 711 (C.A.).  In Crowe v. McIntyre, 2014 ONSC 7106, Chappel J. summarized Drygala along with other cases since, as follows:

[31] The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under-employment in Drygala v. Pauli.  The following general principles derive from that decision and other cases which have considered section 19(1)(a):

a. Section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to establish a fair standard of support for children so as to ensure that they benefit from the financial means of both parents after separation.  In attempting to carry out this purpose, courts must recognize that parents have a joint and ongoing obligation to support their children after the breakdown of their relationship.  In order to meet this obligation, parents must as a general rule earn what they are capable of earning. Imputing income is a means by which the court can give effect to the support obligations of each parent after separation.

b. The first question which the court must address in deciding whether to impute income pursuant to section 19(1)(a) is whether the spouse is intentionally under-employed or unemployed.  In determining this issue, the court should consider the payor party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities.

c. A finding of deliberate under-employment or unemployment does not require evidence of bad faith on the part of the payor spouse or an attempt on their part to thwart support obligations.  A parent is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The parent is intentionally unemployed when they choose not to work when capable of earning an income.

d. In deciding whether a party is deliberately under-employed or unemployed, the court should consider the following principles:

i. There is a duty on a payor parent to actively seek out reasonable income earning opportunities that will maximize their income potential so as to meet the needs of their children.

ii. A self-induced reduction of income with no realistic prospect of future financial advancement is not a basis upon which to avoid or reduce child support payments.  Accordingly, the court may find the party to be deliberately under-employed and impute income where the party has persisted in un-remunerative employment or self-employment, or where they have pursued unrealistic or unproductive career aspirations.

iii. A party may also be imputed income on the basis of deliberate under-employment or unemployment if they quit their employment for selfish or bad faith reasons or if they engage in reckless behaviour which affects their income earning capacity.

e. Even if it is determined that the payor parent is deliberately under-employed or unemployed, the court has the discretion to decide whether or not income should be imputed to them.  This decision will turn on the court’s overall assessment of the reasonableness of the payor’s decisions and actions in relation to their income.

f. The onus is on the recipient spouse to establish that the payor parent is intentionally under-employed or unemployed.  If this hurdle is crossed, the court must turn to the question of whether the under-employment or unemployment falls within the exceptions set out in section 19(1)(a).  The onus at that point shifts to the payor spouse to satisfy the court that their situation falls within one of the exceptions.

g. If the payor alleges that their under-employment or unemployment should not result in an imputation of income because it is required due to their reasonable educational needs, the court must embark upon a two- step inquiry, as follows:

i. First, the court must determine whether the educational needs which the payor relies upon are reasonable.  This analysis involves a consideration of the course of study and whether the studies will realistically lead to meaningful financial benefits in the long term.  This inquiry must be undertaken keeping in mind that a spouse cannot be excused from their child support obligations “in furtherance of unrealistic or unproductive career aspirations.”

ii. If the court is satisfied that the course of study is reasonable, it must then determine what is required by virtue of those educational needs.  In other words, the payor must satisfy the court that the payor’s level of under-employment or unemployment is required by virtue of their reasonable educational needs.   If the payor does not satisfy the court on this point, the court may impute income at a level that it considers appropriate having regard for the educational program and the demands and expectations of the program.  Questions which the payor must address include:  How many courses must be taken and when?  How much time must be spent in and outside of the classroom to ensure continuation in the program?  Are the academic demands of the program such that the payor should be excused from pursuing part-time work?  Could the program be completed over a longer period of time with the payor taking fewer courses at a time so that they could work on either a full-time or part-time basis?  Is summer employment possible?  Can the payor take co-operative courses as part of the program in order to earn income?

h. Finally, in determining the amount of income to impute on the basis of deliberate under-employment or unemployment, the court must consider what is reasonable in the circumstances of the particular case.  The factors that the court is required to consider include the age, education, experience, skills and health of the payor, their past earning history and the amount of income that the payor could reasonably earn if they worked to capacity. [Citations removed.]”

Thomson v. Delmoro, 2019 ONSC 1267 (CanLII) at 39

“Status quo is always a relevant consideration, perhaps less so with the passage of time.  Parents are presumed to have equal status and neither has the right to make unilateral changes, absent special circumstances, agreement or court order.  See:  Rifai v. Green, 2014 ONSC 1377.  A.C.V.P. did act unilaterally at the time of separation and commencement of litigation.  The circumstances had not changed prior to these events.  But he was successful in obtaining the initial court order for custody in November 2014.

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 (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. (6^th) 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.

…

The passage of time, despite being unnecessary and unreasonable, must be considered from the children’s perspective.  Both parties are responsible for the delay.  In this regard, I am not persuaded the status quo during the relationship is determinative.  Nor do I conclude a new status quo was created.  Nevertheless, the four plus years in the care of A.C.V.P. is a factor under section 24(2)(c).”

A.C.V.P. v. A.M.T, 2019 ONSC 1559 (CanLII) at 258-260 & 263

“The decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion.  However, a number of general principles have emerged from Kaplanis, Lawson and the subsequent case-law to assist in the decision-making process.  These can be summarized as follows:

1. 1. 1.   There is no default position in favour of joint custody.  Each case is fact-based and discretion-driven (Kaplanis;  Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A);  Rubinov-Liberman v. Liberman, 2014 ONSC 5700(S.C.J.);  Palumbo v. Palumbo, 2017 CarswellOnt 236 (S.C.J.)).
      2.   Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children.  This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children (Kaplanis;  T.E.H., at para. 446).
      3.  The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).
      4.   However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue.  The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests (Kaplanis, at para. 10).
      5.   Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together.  As Quinn, J. remarked in Brook v. Brook,2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”
      6.   The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order.   The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11;  Ladisa). The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody.  The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children.   If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa).  The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.);  Lambert v. Peachman, 2016 ONSC 7443(S.C.J.)).
      7.   Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.);Kaplanis; Ladisa).  In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis).  There must be a clear evidentiary basis for believing that joint custody would be feasible (Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2).
      8.  In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).
      9.   The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children.  Although a child’s wishes in such circumstances do not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).
      10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.
      11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict.   The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication (Lawson;  Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.),  aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.);  Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.), aff’d 2007 ONCA 898 (CanLII), 2007 CarswellOnt 8271 (C.A.)).  Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707(O.C.J.)).
      12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Habel v. Hagedorn, 2005 ONCJ 242 (CanLII), 2005 CarswellOnt 3863 (O.C.J.);  Garrow v. Woycheshen,2008 ONCJ 686 (CanLII), 2008 CarswellOnt  8193 (O.C.J.);  Bromley v. Bromley, 2009 ONCA 355 (CanLII), 2009 CarswellOnt 2210 (Ont. C.A.);  R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.);  Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.);  Sinclair v. Sinclair, 2013 ONSC 1226 (S.C.J.); Caverley v. Stanley, 2015 ONSC 647 (S.C.J.);  Ferreira v.Ferreira, 2015 ONSC 2845 (S.C.J.);  T.E.H. ).

While the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole vs. joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court.  Even if both parents are attentive and loving, a joint custody order may not coincide with the child’s best interests.  As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

Jackson v. Jackson, 2017 ONSC 1566 (CanLII) at 65-66