“Courts have traditionally discouraged the variation of interim orders on an interim basis pending trial unless the circumstances are urgent. The preferable approach is to get the matter on to trial. However, that is not to say that it can never be done. For example, very recently in Michael v. Michael, 2024 ONSC 3107, Coats J. changed a spousal support order made earlier in the case, in advance of trial. In so doing she found that the payor had established a strong prima facie case for a material change in circumstances, because there had been a significant decrease in the payor’s income and an increase in the recipient’s. She found that neither had significant assets or debts, that continuing the Order would cause financial hardship as both parties were in similar financial circumstances, and the support order was almost all of the payor’s current income. She found that it would be “incongruous and absurd” to continue the spousal support Order, as the recipient’s income was higher than the payor’s, and the payor did not have the capacity to pay: see ¶ 10-18.”
June 9, 2025 – Advance Against Equalization
“Although not specifically provided for in the Family Law Act, R.S.O. 1990, c. F.3, this court has jurisdiction to award an advance against equalization: Zagdanski v. Zagdanski, 2001 CanLII 27981, at paras. 22-38.
Before such an advance is ordered, I should consider the following:
a. Whether there is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;
b. Whether there is some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;
c. Whether there is a reasonable requirement for the funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and
d. Whether there are other circumstances such that fairness requires some relief for the moving party, such as a delay in the action, deliberate or not, prejudicing the moving party by, for example, running of their costs.
See Zagdanski, at para. 39; Firestone v. Pfaff, 2012 ONSC 4909, at para. 24.”
June 6, 2025 – Interviewing Children In Every Case: Not The Rule
“There are too many litigants coming to court and demanding that the only way to respect Canada’s responsibilities as a signatory to the United Nations Convention on the Rights of the Child, Article 12, is for the judge to order that an independent professional assessor become involved and interview the child, regardless of the individual circumstances of the case. That is clearly wrong. Such a submission is not justified by the Convention itself, or by any provision in the Divorce Act, or by any binding jurisprudential authority that I am aware of. Such a submission is an oversimplification that derogates from the plain wording of the legislation itself, in that Parliament could have worded section 16(3)(e) of the Divorce Act differently so as to specify how, or in what evidentiary form, a judge should meet the mandatory requirement to consider the child’s views and preferences, except where they cannot be ascertained, in determining that child’s best interests. Parliament chose not to do so. One might reasonably conclude that the choice not to was informed by considerations that include limited resources on the part of families, limited resources on the part of the Office of the Children’s Lawyer, and the desire not to hold a child in limbo while we wait for something from a third party that may not be necessary.”
June 5, 2025 – Enforcing Settlement Agreements
“A helpful and succinct statement of the law regarding the enforcements of settlement agreements is found in Zaidi v. Syed (Estate), 2023 ONSC 1244, at para. 13, aff’d 2024 ONCA 406, a case involving a settlement agreement parties reached in connection with an estates dispute:
[12] The law associated with the enforcement of settlement agreements, which is an aspect of the well-settled law of contract, is also well settled…
[13] A settlement agreement is a contract, and the court has jurisdiction at common law and under rule 49.09 to enforce settlements. A motion to enforce a settlement involves two elements. The first element is whether or not there is any genuine issue about the existence of an agreement to settle, and the second is to determine whether there is any reason not to enforce the settlement.
[14] For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon. However, it is not necessary to have reached agreement on incidental matters, such as the method of payment or the exchange of releases.
[15] There is a strong presumption in favour of the finality of settlements; however, a settlement agreement is a contract and is subject to the law of contract formation, and a settlement agreement can be set aside in the same way that a contract may be rescinded for mistake, fraud, innocent misrepresentation, duress, undue influence, or unconscionability. [Emphasis added, footnotes omitted.]
I should add here that in family cases, settlements can also be set aside under s. 56(4) of the Family Law Act.”
June 4, 2025 – Retroactive Decreases of Child Support
“To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies:
(1)The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.
(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.
(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.”
June 3, 2025 – Non-Compliance With Costs Orders
“Generally, a litigant will not be permitted to continue with proceedings where a costs order remains unfulfilled: Munro v. Canada (Attorney General) (1994), 1994 CanLII 7517 (ON SC), 120 D.L.R. (4th) 746, at paras. 9, 12. Justice Dunphy summarized the principles that guide the court’s exercise of discretion under these rules, which include that:
a. where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused;
b. the right of access to the courts must be accompanied by the responsibility to abide by the Rules of Civil Procedureand to comply with orders of the court; and
c. the court ought not to sit in appeal of the prior cost awards as seeking relief against prior costs orders constitutes a collateral attack on orders previously made: Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50.”
June 2, 2025 – Questioning vs Cross-Examination
“When considering the difference between examinations for discovery and cross-examinations on an affidavit, I always start with the seminal decision of MacKinnon ACJO in Chitel et al. v. Rothbart et al., 1982 CanLII 1956 (ON CA). The Associate Chief Justice reminded the profession that although the two procedures look alike, they are not the same. MacKinnon ACJO wrote:
Counsel seemed to have confused, in part at least, the right to limit “fishing expeditions” on examination for discovery with a severe limitation on the extent of proper cross-examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross- examine and effectively frustrate its legitimate purpose.
Discovery, as discussed below, is compelled disclosure of private information. However, as discussed by MacKinnon ACJO, cross-examination out of court on an affidavit is different. It replicates a cross-examination on sworn evidence in open court.”
May 30, 2025 – Appealing Judgments on Imputation of Income
“This court owes substantial deference to the trial judge’s findings of fact and mixed fact and law. The court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1; see also Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. In addition, the imputation of income for support purposes is a discretionary and fact-specific exercise: Levin v. Levin, 2020 ONCA 604, at para. 12; see also Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561.”
May 29, 2025 – Valuing Federally Governed Pensions
“Certainty in the resolution of financial issues flowing from the dissolution of family relationships has been a policy imperative underlying much of the recent reform of family law in Canada. Child support, spousal support, and the division of family property have all been clarified through legislative and regulatory reform. While certainty should be tempered by limited judicial discretion to ensure fairness, certainty facilitates two essential policy objectives of family law: the encouragement of settlement and the avoidance of costly litigation to resolve financial issues.
The Government of Ontario enacted legislation that came into effect in 2012 amending the Pension Benefits Act, R.S.O. 1990, c. P.8 (the “PBA“) and the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA“), to simplify the valuation of pensions for purposes of calculating net family property. This legislation brought much-needed certainty to the valuation of what, in many cases, is the most significant asset held by litigants on their valuation date. A formula was established for pension valuations and the responsibility for calculating that value was imposed on pension administrators. Thus, courts largely got out of the business of pension valuation. For litigants this provided both certainty and fairness. It also allowed them to avoid the costly process of retaining actuarial experts and litigating competing pension valuations.
The Ontario rules for valuating provincially regulated pensions for equalization purposes are relatively clear and easily applied. However, the valuation of federally regulated pensions is not as certain. Parliament has not reformed the law regarding pension valuations to bring it in line with the Ontario legislation. Until it does, Ontario courts must apply, to the extent reasonably possible, the provincial approach to valuing federal pensions for family law equalization.”
May 28, 2025 – All About Parenting Coordination
“For the benefit of the parties, I include the following excerpts from Steps to Justice: Your Guide to Law in Ontario:
Parenting coordination is an alternative dispute resolution, also called family dispute resolution process. Parents can meet with a parenting coordinator for help with following the parts of their court order, family arbitration award, or separation agreement that are about parenting.
…
A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders.
A parenting coordinator doesn’t decide major things like decision-making responsibility or parenting time. These used to be called custody and access. But a parenting coordinator can decide minor issues like:
- small changes to a parenting access plan such as vacations and holidays
- scheduling activities and arranging for pick up and drop off to activities like ballet, hockey, or tutoring
- children’s travel and passport arrangements
- how your children’s clothing and school items are moved between your and your partner’s homes
A parenting coordinator helps you speak with each other to try and agree on your parenting issues. If you can’t agree, they can decide for you. Their decision is based on information they get from the parents, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.
The process is similar to mediation-arbitration. But the parenting coordinator cannot make major decisions. Their job is to help you follow the parts of your court order, family arbitration award, or separation agreement that are about parenting.
Parenting coordinators are trained to:
- understand the needs of children
- help each parent discuss their parenting issues
- help parents to manage and keep children out of conflicts
…
Some of the reasons to use parenting coordination are:
- You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children’s needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
- It can be faster than going to court once you have agreed on all of the process details and signed a parenting coordination agreement.
- It can be cheaper than going to court to resolve minor parenting issues.
Community Legal Education Ontario, “What is Parenting Coordination?” (1 March, 2021), online: https://stepstojustice.ca/questions/family-law/what-parenting-coordination/?gclid=.
It is not within this court’s jurisdiction to order the parties into Parenting Coordination absent their consent.”