Siegel's Family Court Calendar

“The leading case on adding parties is Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC).  In that case, Justice Grant Campbell stated, at paragraph 22:

[22]      Since the court’s discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former rules continue to apply.  In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

	(i)	whether the addition of the party is in the best interests of the child,
	(ii)	whether the addition of the party will delay or prolong proceedings unduly,
	(iii)	whether the addition of the party is necessary to determine the issues, and
	(iv)	whether the additional party is capable of putting forward a plan that is in the best interests of the child.

In addition to these four factors, Justice Campbell stated, at paragraph 24:

[24]    Consequently, in addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.

At paragraph 25, Justice Campbell went on to state:

[25]      “Legal interest” is defined in Black’s Law Dictionary, 7th ed., (St. Paul, Minn.:  West Group, 1999) as “[a]n interest recognized by law, such as legal title.”  In child protection proceedings, an interest recognized by law occurs when a court has the opportunity to make an order for or against a person in relation to the child.  For example, subsection 57(1) of the Child and Family Services Act enumerates the types of orders that a court must make where a child is found to be in need of protection.  Each of the possible orders creates a legal interest in so far as the placement of the child is concerned.  Paragraph 1 of subsection 57(1) creates a legal interest for “a parent or other person”, paragraph 2 of subsection 57(1) creates a legal interest for the “society” and paragraph 3 of subsection 57(1) creates a legal interest for “the Crown”.  The parent or other person, the society and the Crown all have a legal interest in the proceedings because an order for the placement of the child can be made for or against them.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (CanLII), the Court of Appeal stated, at paragraph 24:

[24]      It is not necessary for all factors [in H.(S.), supra] to favour the person seeking party status for the court to add him or her.

Accordingly, what this court takes from all of the foregoing is that these are the five considerations the court must examine in deciding, on balance, whether it would be appropriate to add the paternal grandparents as parties.”

Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14 (CanLII) at 28-32

“This appeal is transferred to the Divisional Court, without prejudice, on the basis that we do not have jurisdiction to hear it.

The order being appealed provides for child support for the son, Mehrtash Samadzadeh, at $250 per month, terminates child support for the daughter, Mahsa Samadzadeh, and dismisses the mother’s claim for retroactive support.  The order was made in response to the father’s variation motion and the mother’s cross-motion to vary support for both children.  The mother seeks support of $434 per month for her son as well as retroactive support in respect of both children totalling $16,566.  Prior to the motion, the father was paying support for both children in the amount of $310.28 per month.

Section 19(1.2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that if the appeal relates to a final order “for periodic payments that amount to not more than $50,000, exclusive of costs in the 12 months commencing on the date the first payment is due under the order”, the appeal is to be heard in the Divisional Court.  In relation to the order for Mehrtash, the amount in issue is clearly within the jurisdiction of the Divisional Court.  Section 19(1.2)(c) provides that if the appeal relates to a final order “dismissing a claim for an amount that is not more than” $50,000 (or periodic payments totalling $50,000 in the 12 months commencing on the date the first payment is due), exclusive of costs, the appeal lies to the Divisional Court.  The termination of support for Mahsa amounted to a dismissal of the mother’s cross-motion for increased support of less than $50,000 and the total amount for both children is significantly less than periodic payments totalling $50,000 per year.

In respect of the claim for retroactive support, pursuant to s. 19(1.2)(a), the jurisdiction of the Divisional Court extends to a final order “for a single payment of not more than $50,000, exclusive of costs” and the amount in issue here is, again, significantly below that amount.

Bahadori v. Samadzadeh, 2009 ONCA 10 (CanLII) at 1-4

“As a matter of law and common sense, joint custody requires a high degree of cooperation between the parents: Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No. 1801 (C.A.). The issue before the trial judge in a custody case is the best interests of the child. Where one parent professes an inability to communicate with the other parent, that assertion alone does not mean that a joint custody order cannot be considered. Rather, the court must consider whether there is some evidence that, despite their differences, the parents are able to communicate effectively with one another: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.); Giri v. Wentges, 2009 ONCA 606 (CanLII), [2009] O.J. No. 5173 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 438.

Joint custody is not appropriate where parents are unable to cooperate and communicate effectively and are unlikely to be able to achieve a sufficient level of cooperation: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (C.A.); Kappler v. Beaudoin, 2000 CanLII 22579 (ON SC), [2000] O.J. No. 1558 (S.C.J.). However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of cooperation: Lawson.

There is no default position in favour of joint custody in Ontario. Each case is fact based and discretion driven. Past parenting experience, both during cohabitation and after separation, is of critical importance to the court’s decision whether to order shared parenting in any form: Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.).

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. In a parallel parenting regime, the court typically allocates decision-making on major matters so that in the case of conflict, one parent will have final say: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178 (C.A.).”

Ince v. Mattson, 2019 ONSC 120 (CanLII) at 132-135

“Most of the case law on this subject has arisen in the context of applications to increase child support retroactively.  The general principles and underlying rationale apply, however, to cases where the paying spouse seeks to retroactively reduce child support payable to reduce or eliminate arrears that have accrued or to obtain reimbursement of an overpayment.

In deciding whether to rescind child support arrears, the court will consider, inter alia, the following factors:

a)  The nature of the obligation to provide support, whether contractual, statutory or judicial;

b)  The ongoing financial capacity of the payor spouse;

c)  The ongoing need of the custodial parent and the dependent child;

d)  Unreasonable and unexplained delay on the part of the parent seeking to enforce payment of the obligation;

e)  Unreasonable and unexplained delay on the part of the payor spouse to seek appropriate relief from his or her obligation;

f)  Where payment of the arrears will cause undue hardship, the exercise of the court’s discretion to grant a measure of relief is based on a holistic view which weighs the needs of the child and custodial parent, and the current and future capacity of the parent who must pay the arrears.

(See DiFranscesco v. Couto, 2001 CanLII 8613 (ON CA), [2001] O.J. No. 4307 (ON C.A.) at para 23.)”

         Kimbrell v. Kimbrell, 2017 ONSC 142 (CanLII) at 72-73

“Where parental gifts have supported a lifestyle well in excess of a basic standard of living, before and after separation, they will be included as income.”

Peerenboom v. Peerenboom, 2018 ONSC 7562 at 58

Dear Subscriber,

As 2019 comes to a merciful close, the team here at the Siegel Family Court Calendar wishes you the very best this holiday season.  Regardless of your political affiliation, gender, sexual orientation, faith, eye colour, height, weight or favourite font, we hope you enjoy some well-earned downtime over the break and come back ready to collaborate, negotiate or litigate, whatever suits your fancy, in the new year.

Our final quote will appear tomorrow and resume on January 6th.  We hope you’ve enjoyed them this year as much as we’ve enjoyed finding and bringing them to you.

Love, Brahm

“Mr. Hanniman submits that it is unfair to allow double recovery by way of continued spousal support payments to Ms. Hanniman, drawn on his share of his pension income, when she has already received her half of that pension.

In Boston, the Supreme Court of Canada defined double recovery as follows:

The term “double recovery” is used to describe the situation where a pension, once equalized as property, is also treated as income from which the pension-holding spouse (here the husband) must make spousal support payments.  Expressed another way, upon marriage dissolution the payee spouse (here the wife) receives assets and an equalization payment that take into account the capital value of the husband’s future pension income.  If she later shares in the pension income as spousal support when the pension is in play after the husband has retired, the wife can be said to be recovering twice from the pension: first at the time of the equalization of assets and again as support from the pension income (at para. 34).

As a general rule, double recovery should be avoided where possible.  As the Court stated in Boston, it is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and as a source of income.  To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee’s continuing need for support is shown (paras. 63-64).

However, the Supreme Court of Canada also acknowledged that double recovery cannot always be avoided and may be permitted in limited circumstances:

Despite these general rules, double recovery cannot always be avoided.  In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset.  Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists.  Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation … (Boston, at para. 65).”

Hanniman v. Hanniman, 2017 ONSC 7536 (CanLII) at 34-37

“The duty of a trial judge to assist self-represented litigants was canvassed most recently by this court in Dujardin v. Dujardin Estate, 2018 ONCA 597 (CanLII):

it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. However, a trial judge’s duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566 (CanLII), 402 D.L.R. (4th) 135, at para. 22: “A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”

In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36.”

Gionet v. Pingue, 2018 ONCA 1040 (CanLII) at 30-31

“This trial is the culmination of three years of litigation between spouses who are the parents of three children. As parents they sought advice, first through the local co-ordinated case management program, subsequently through a sophisticated voice of the children report. Their common refrain for not following the advice given was that it cost too much. The mother testified she could not afford an amount of $350 to take New Ways for Families, a course designed to improve communication between separated parents.  The father ceased his pursuit of family counselling necessary to repair his relationship with his two sons, when he could not obtain it free of charge.  As spouses, the parties have already had to sell two of their four real properties to cover debt and legal fees. The Respondent’s plumbing business has gone into bankruptcy.  Neither spouse is currently employed.  Both explain this in some part by reference to the stressful and time-consuming litigation.

“Penny wise and pound foolish:” to be extremely careful about small amounts of money and not careful enough about larger amounts of money.

“For want of a nail the kingdom was lost:” a failure to correct some small dysfunction, a seemingly unimportant act or omission, leading by successively more critical stages to an egregious unforeseen outcome or consequence.

Cost is a word with many meanings.  Most importantly, has the litigation been at the children’s cost?  From their perspective would a cost – benefit analysis show that the cost of this undertaking has exceeded the resulting benefit?  These questions may be asked another way:  have the parents been acting in the best interests of their children throughout this litigation?  The Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.) s. 16 (8) refers to the best interests of a child as the only factor relevant to parenting orders.

The Supreme Court of Canada referred to the best interests test in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27,  stating as follows:

20. The best interests of the child test […] stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake.  […]  Parliament has offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.

21. […] Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.

24.  […] The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

Sadly, the cost of this litigation has been very high for all concerned, especially the innocent children.  The parents’ have not followed the parenting recommendations made for them, and by not doing so, have not acted in the best interests of their children.”

Shouldice v Shouldice, 2016 ONSC 6203 (CanLII) at 1-6

“The express purpose of the Family Law Rules is to ensure fairness, save time and expense, and give appropriate resources to the case (while allocating resources to other cases), in order to manage the case, control the process, ensure timelines are kept, and orders are enforced. As clearly stipulated in subrules 1(7.1), (8) and (8.1), an order, including an order to strike pleadings, can be made at any time in the process, including the settlement conference, to promote these overarching purposes. In this way, any order that promotes the overall objectives of the rules may be made at any time, including at a settlement conference.”

Burke v. Poitras, 2018 ONCA 1025 (CanLII) at 7.