“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.”
May 2 – Reason For Wanting to Move Away With Child
“Under the Divorce Act, the custodial parent’s conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability. Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child’s best interests: see McGowan v. McGowan (1979), 11 R.F.L. (2d) 281 (Ont. H.C.); Wells v. Wells (1984), 1984 CanLII 2646 (SK QB), 38 R.F.L. (2d) 405 (Sask. Q.B.), aff’d (1984), 1984 CanLII 165 (SK CA), 42 R.F.L. (2d) 166 (Sask. C.A.). However, absent a connection to parenting ability, the custodial parent’s reason for moving should not enter into the inquiry.”
May 1 – Imputing Income Principles
“Section 19 of the Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).
In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles: a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices. b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children. c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent. d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances. e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income: 1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of his 2018 ONCJ 286 (CanLII) – 57 – or her reasonable educational or medical needs, or those of a child? 3. If not, what income is appropriately imputed?
The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, [2009] O.J. No. 1552. (Ont. C.A.).
Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.).
The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.”
April 30 – Hearsay Principles
“Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.
At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283 (CanLII), 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611 (CanLII), 13 C.R. (7th) 396, at para. 72.
At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the exert evidence”: para. 76.”
April 29 – Judge Seizing A Case
“Rule 39(9) lists the functions of a case management judge, who is required to supervise the progress of the case, to conduct conferences and to hear motions. Rule 39(9) is seen as the gold standard of case management, but it only applies to cases in unified Family Court jurisdictions. Since this case was not decided at a unified Family Court site, the more sparse case management provisions of r. 41 apply. This rule does not explicitly list the functions of a case management judge. This distinction in the Rules reflects the fact that unified sites historically had more judicial resources and therefore could provide more active case management.
However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).”
April 26 – Extending Limitation Period for Equalization Claim
“The motions judge dealt with this first condition as follows [at p. 391 R.F.L.]:
Section 2(8) of the Act sets out three conditions which must be met before a Court will exercise its discretion to extend the limitation period. The first is whether there are apparent grounds for relief. Based on the materials filed on this motion, I am satisfied that this threshold has been met. Mr. Scherer has attested to several reasons why he did not assert this claim prior to the expiration of the limitation period.
(Emphasis added)
It appears from these reasons that the motions judge was of the view that the first condition under s. 2(8)(a) established an initial “threshold” that required the moving party to show apparent grounds for obtaining an extension of time. However, the “relief” under s. 2(8)(a) (and under s. 2(8) (b)) is not referable to the extension of time sought by the moving party on the motion but to the relief sought on the prescribed claim. The “relief” in question here is the equalization payment sought by the appellant in his Counterpetition. It is incumbent upon the appellant to show that he has apparent grounds for making that claim.”
April 25 – Important Ingredients for Joint Custody
“To have custody of a child is to have decision-making responsibilities in relation to the child’s care and upbringing. Good communication between parents is relevant to the appropriateness of a joint custody order. In our view, the trial judge, who had the benefit of seeing and hearing the parties over the nine-day trial, gave adequate reasons for refusing to order joint custody. He found, at paras. 58-60 of his reasons:
This is not an appropriate case for an order for joint custody. As noted by the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106 (C.A.), a mere hope for better communications between parents after the litigation has ended is not a sufficient basis to order joint custody.
Based on the evidence before me, there is no indication that the parties could effectively co-parent the children. This is a case rife with conflict between the parents and with serious allegations levelled against each other.
In my view, an order for joint custody would not be in the children’s best interests and would only lead to further conflict between the parents.”
April 24 – Changing Temporary Parenting Orders
“And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 (Ont. S.C.J.) as accurate statements of the law:
[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]”
April 23 – Imputing Income
“Subsection 19(1) [of the Child Support Guidelines] is clearly intended to capture cases that, in fairness, require an adjustment to the payor’s presumptive income and, for this purpose, it provides a court with the discretion to impute income when it is “appropriate [to do so] in the circumstances”.
The list of circumstances in s. 19(1) is not exhaustive: the legislature only provides that the list “include” items (a) – (i). Further, there is nothing in the provision that suggests other appropriate circumstances must be analogous to those specifically enumerated, although similarity of circumstance to one listed in s. 19(1) would support the imputation of income, simply because such a circumstance would be consistent with legislative intention. The absence of analogy to a listed circumstance is simply a factor to be considered in interpreting the provision.
Some cases have held that there must be similarity between a new appropriate circumstance and the listed circumstances. However, Riel v. Holland, [2003] O.J. No. 3901 (C.A.) makes it clear that the listed circumstances are simply examples and it is open to find new circumstances in which to impute income, provided that the new ground is consistent with the purpose of s. 19(1) and the Guidelines generally. Writing for this court in Riel, MacPherson J.A. concluded at para. 36:
The wording of s. 19 of the Guidelines is open-ended (“which circumstances include”), thus indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can, and should, be imputed.
If appropriate circumstances arise, particularly ones unforeseen by the legislature, a court has the discretion, to be exercised on a principled basis, to impute income to a payor parent. When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”
April 18 – The Hague Convention and Immigration Act
“In our view, there is no conflict between s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Properly interpreted, harmonious effect can be given to both.
In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. As we will explain in the reasons that will be subsequently provided, no meaningful risk assessment was or could have been undertaken in the circumstances of this case at the time the motion was heard. As a result, the Order cannot stand; this court stands in the shoes of the motion judge.”