Siegel's Family Court Calendar

“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

“It is fundamental that a child’s best interest is to maximize the amount of parenting time with both parents.  As a corollary, any attempt by a party to minimize or marginalize the other party’s parental time or role, is a very serious shortcoming in a party’s parenting ability.”

Pontigon v. Pontigon, 2018 ONSC 1445 (CanLII) at 52

“We adopt, for the purposes of this appeal, the following statement made by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493 (CanLII), [2016] O.J. No. 3257, at para. 10:

It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.  Litigants are not entitled to pick their judge.  They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges.  To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.”

Miracle v. Maracle III, 2017 ONCA 195 (CanLII) at 7

“I adopt the thoughtful summary made by Madsen J. in Weber v. Merritt, 2018 ONSC 3086 (CanLII) of the applicable principles and the contextual considerations relevant to ordering non-party disclosure and questioning:

1. 1. 29. The onus on a motion for non-party disclosure and/or questioning is on the moving party. Ontario (Attorney General) v. Ballard Estate, 1995 CarswellOnt 1332 (Ont. C.A.)at 16.

1. 1. 30. The starting point is to consider the context, and the purpose for which the Rule is invoked. Ireland v. Ireland, 2011 ONCA 623 (CanLII) ([In Chambers]) at 28.

1. 1. 31. The Court has held that the test under rule 19(11) is an objective test which requires an analysis outside the litigant’s belief system: “suspicion and conjecture will not suffice.” See Santilli v. Piselli, 2010 Carswell Ont 3317 (Ont. S.C.J.)at paragraph 12. There is no reason that the test would not be the same under rule 20(5).

1. 1. 32. In Ontario (Attorney General) v. Ballard Estate, supra at 15, in the context of the Rules of Civil Procedure, the Ontario Court of Appeal set out six factors to be considered by the Motions judge when faced with a motion for non-party disclosure:

a. The importance of the documents in the litigation;

b. Whether production at the discovery stage of the process as opposed to production at Trial is necessary to avoid unfairness to the Applicant;

c. Whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether the responsibility for that inadequacy rests with the defendants;

d. The position of the non-parties with respect to production;

e. The availability of the documents or their informational equivalent from some other source which is available to the moving party;

f. The relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

1. 1. 33. Rule 20(5) has been held to be more permissive than the comparable Rule in the Rules of Civil Procedure, and to give judges more liberal and generous discretion. As noted by Justice Turnbull in Hagey-Holmes v. Hagey, 2005 CarswellOnt 2840 (Ont. S.C.J.)at 32:

That makes eminent sense when one considers that in matrimonial litigation, spouses and family members may be “used” to shield income or other assets that might be relevant in the assessment of spousal support, child support, or net family equalization issues.

1. 1. 34. So too in Loeb v. Loeb, 2013 CarswellOnt 3247 (Ont. S.C.J.)at 42, the Court noted that it is not uncommon in the family law context for family members and their businesses to align themselves to support and protect a family member defending a property or support claim.

1. 1. 35. At the same time, as set out in Boyd v. Fields, 2006 CarswellOnt 8675 (Ont. S.C.J.)at 12, as with all disclosure requests in the family law context, whether from parties or non-parties, while full and frank disclosure is a fundamental tenet of the Family Law Rules, “there is also an element of proportionality, common sense, and fairness built into these rules.” Disclosure obligations must be assessed in light of Rule 2(3).

1. 1. 36. As stressed by Justice Kristjanson in Politis v. Politis, 2018 ONSC 323 (Ont. S.C.J.) (CanLII), in the family law context, the test for compelling third party disclosure set out in Ontario (Attorney General) v. Ballard Estate, supra, “must be supplemented to take into account two critical values, privacy and proportionality.” She notes, in the context of new partners, that privacy interests of third parties must be carefully balanced against the interests of the parties in the proceeding.

1. 1. 37. Non-parties are generally protected from potentially intrusive, costly, and time-consuming processes of discovery except in circumstances specifically addressedby the Rules. See Santilli v. Piselli, supra. As Justice McGee noted therein at paragraph 13: “The discovery process must be kept within reasonable bounds.”

1. 1. 38. There must be an evidentiary basis to show that the documents sought or the questioning requested is relevant. The request for disclosure from a non-party and the request for questioning should not amount to a fishing expedition. Campbell v. Wentzell, 2015 CarswellOnt 15086 (Ont. S.C.J.)at 47. Disclosure is not a weapon and is not intended to overreach. Saunders v. Saunders, 2015 CarswellOnt 2209 (Ont. S.C.J.)at para. 13.

To this summary I would add the contextual filter noted by Kane J. in Loeb v. Loeb (cited above, at para.48) that “[w]hat is fair, relevant and needs to be produced increases with the complexity of the circumstances of the parties.”

Cavarra-Aitoro v. Aitoro, 2019 ONSC 1460 (CanLII) at 11-12

“Notwithstanding the appellant’s claim that, on the basis of the proceedings and material before her, Van Melle J. could not and in fact did not make a finding of contempt, his position that the order under appeal is a final order rests on the assumption that it is, in substance if not in form, a contempt order.  He argues that Rule 31, which allows the court to impose a finding of contempt against a party in breach of an order, is the only provision of the Family Law Rules that allows for the imposition of a fine or monetary penalty.  Because a fine was imposed by Van Melle J., the order must therefore be a contempt order.

A finding that a party is in contempt of court “is a serious matter that is quasi-criminal in nature”: Bell Express Vu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), at para. 20.  The significance of this is such that a contempt order is considered to be a final order, an appeal from which lies directly to this court: Bush v. Mereshensky (2007), 2007 ONCA 679 (CanLII), 43 R.F.L. (6th) 267 (Ont. C.A.), at para. 10.

However, the respondent argues that Van Melle J.’s order cannot be considered a contempt order.  A finding of contempt was not sought in any of the motions before Van Melle J. or Corbett J.  In any event, neither Van Melle J. nor Corbett J. addressed the issue of contempt or made findings in that regard.

The respondent submits that the authority for imposing a fine exists quite apart from the contempt provisions of the Family Law Rules. Specifically, she refers to three provisions of the Family Law Rules which she claims support her position that the court was entitled to make any order it considered appropriate in view of the appellant’s failure to obey Corbett J.’s disclosure order:

• • • Rule 1(8) provides that the court may, where an order has not been complied with, make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including …”
    •  Rule 14(23) provides that on a motion for failure to obey an order that was made on motion, the court may “in addition to any other remedy allowed under these rules,

…

(c) make any other order that is appropriate, including an order for costs.”

• • •  Rule 19(10) provides that the court may, on motion, make various orders where a party has failed to comply with an order to disclose documents.  Such orders include a contempt order, but also include “any other order that is appropriate.”

The respondent argues that any of these rules gave Corbett J. the necessary authority to order the appellant to pay a fine in the event that he failed to comply with the disclosure order and produce the required documents.  Van Melle J.’s order for payment of the fine did no more than apply the terms of Corbett J.’s order.  The respondent submits that no finding of contempt was sought or made and the order for the payment of the fine did not finally dispose of any issue in the proceedings.  I agree.”

Mantella v. Mantella, 2009 ONCA 194 (CanLII) at 16-21.

“That said, in my view, it would have been preferable to first establish whether there was any unjust enrichment before considering the possibility of a joint family venture. The joint family venture inquiry concerns remedy. In Martin v. Sansome, 2014 ONCA 14 (CanLII), at para. 52, this court set out the appropriate analysis for determining an unjust enrichment-based claim for an interest in property within the context of a domestic relationship and following the Supreme Court’s decision in Kerr v. Baranow:

1) Have the elements of unjust enrichment — enrichment and a corresponding deprivation in the absence of a juristic reason — been made out?;

2) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;

3) If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,

4) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?”

Reiter v. Hollub, 2017 ONCA 186 (CanLII) at 25-26

“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home. As a matter of general principle, while a matrimonial home occupies a special and separate place in the statutory scheme established by the Family Law Act, once the matrimonial home is ordered to be sold, each spouse is entitled to receive fair market value for his or her interest in it. See Batler v. Batler , supra.

In Dibattista (in trust) v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443, 74 D.L.R. (4th) 569 (C.A.), this court held that in proceedings taken under the Partition Act, neither party should be given a right of first refusal, if the property (held by the parties as tenants in common) were to be ordered to be sold. Brooke J.A. dealt with the right of first refusal issue, in this way, at p. 449 O.R., p. 575 D.L.R.:

Neither party can be given a right of first refusal. Both parties are free to bid at such sale and can be expected to act to protect their investment.

In my opinion, a right of first refusal, such as was granted to the respondent, is a substantive right. It is a right which has some clear, albeit difficult to quantify, economic value. It is a right which falls outside the boundaries of what is ancillary to, or what is reasonably necessary to implement the order for sale of the matrimonial home.

A right of first refusal will most often work to discourage other interested buyers. If a spouse is granted a right of first refusal, the effect of it is to remove that spouse from the competitive market for the matrimonial home. The existence of a right of first refusal distorts the market, because it provides a benefit to one party, which eliminates the need for that party to compete with any other interested purchaser. Finally, if the spouse with a right of first refusal is in possession, the existence of the right of first refusal will provide a disincentive to maintaining the property, so as to increase its value and saleability. I acknowledge that, in some degree, the same disincentive may operate if a spouse in possession, without a right of first refusal, wants to buy the matrimonial home. In my view the motions court judge erred in concluding that the right of first refusal would not prejudice Mrs. Martin.”

Martin v. Martin, 1992 CanLII 7402 (ON CA) at 28-31

“Section 18(2) of the Divorce Act provides that a court may make a provisional variation order in respect of a support order where:

(a) The respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) In the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [Emphasis added]

In Dent v. Flynn (2005), 2005 CanLII 14317 (ON SC), 15 R.F.L. (6th) 126 (Ont. S.C.J.) at para. 21, Ferrier J. summarized the requirements to be met before a provisional order may be made, as set out in Albinet v. Albinet, 2003 MBCA 22 (CanLII), 33 R.F.L. (5^th) 275, as follows:

(1) The respondent resides in a different province than the applicant;

(2) The respondent does not accept the jurisdiction of the court where the applicant resides;

(3) Both parties do not consent to proceed under s. 17.1 of the Divorce Act; and

(4) The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/confirmation procedure.

Here, the first criterion is met in that the parties reside in different provinces. I find that the fourth criterion is established in that Campbell J. was satisfied that the matter could be adequately determined through the two-stage process involving the issuance in the rendering court of a provisional order and its consideration for confirmation in the receiving court.

However, the record forwarded from the issuing court does not contain any evidence that the Respondent did not accept the jurisdiction of the Nova Scotia Court. Indeed, there is no evidence that she was served with process emanating from the Nova Scotia Court. Further, there is no evidence that the Respondent did not consent to the application of section 17.1 of the Divorce Act, which provides as follows:

Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

The party requesting the provisional order bears the onus of establishing that all four of the requirements of section 18(2) of the Divorce Act have been satisfied: Albinet; Wolch v. Wolch, 2006 MBCA 43 (CanLII), 26 R.F.L. (6th) 239 at paras. 14-15. Where all four requirements are not established, the provisional order cannot be rendered, and cannot be confirmed: Dent v. Flynn at para. 27.”

         Davidson v. Davidson, 2019 ONSC 6727 (CanLII) at 54-58

“There is no general discretion under the Family Law Act to redistribute property or alter ownership unless it is to satisfy an equalization payment: Buttar v. Buttar, [2013] O.J. No. 3725 (Ont. C.A.) at para. 53.”

Rebiere v. Rebiere, 2015 ONSC 1324 (CanLII) at 34

“Finding that the parties maintained two separate residences in Toronto is not the end of the inquiry as to whether they lived together.  In considering the flexible approach put forth by the Supreme Court of Canada in M. v. H., and in considering whether maintaining separate residences eliminates a party’s ability to be considered a spouse, Justice Karakatsanis, in Campbell v. Szoke (referred to above) [2003 CanLII 2291 (ONSC)] states [at para 52]:

The fact that the parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children: Thauevette v. Maylon (1996), 1996 CanLII 8090 (ON SC), 23 R.F.L. (4^th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under section 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent, [2000] O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate, [1993] O.J. no. 1731 at para. 21 (Ont. Gen. Div.).”

         Climans v. Latner, 2019 ONSC 1311 (CanLII) at 122