“This court has jurisdiction to make therapeutic orders involving children: s. 16(6) DA and A.M. v. C.H., 2019 ONCA 764 at paras 49 to 51. Section 10 of the Health Care Consent Act, which prohibits a health practitioner from administering treatment to a capable person without that person’s consent, does not preclude this Court from ordering an unwilling child from attending therapy if the Court determines it is in the child’s best interests. However, the Court must give greater weight to a child’s wishes as the child matures: A.M. at para 71. In considering whether to make such an order, the Court should assess the child’s maturity.”
January 20, 2026 – Key Spousal Support Principles
“In the leading Supreme Court of Canada decisions of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.
In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.
On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.
Moge and Bracklow set out the following examples of compensatory support:
a) A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
a) A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
b) A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
c) A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;
d) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
The Spousal Support Advisory Guidelines (“SSAG”) set out following examples of economic disadvantage:
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- Home with children full-time or part-time;
- Secondary earner;
- Primary caregiver of the children after separation;
- Moving for payor’s career;
- Support for payor’s education or training;
- Working in family business.
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In Bracklow (para 32), the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court also stated that marriage is an “economic partnership” based on mutual support.” The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court”.
Further, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” (see:Bracklow, para 40).
Therefore, all of the statutory objectives must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances.
In Moge (para 870), the court stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.”
January 19, 2026 – Setting Aside Separation Agreements
“Cases interpreting s. 56(4) of the FLA confirm that the analysis requires two steps. First, the party seeking to set aside the contract must demonstrate that one or more of the provisions in (a) – (c) has been engaged. If that hurdle is overcome, the court must consider whether it is appropriate to set aside the agreement (LeVan v. LeVan, 2008 ONCA 388 at para. 51; Toscano v. Toscano, 2015 ONSC 487 at para. 43; and Hashemi v. Alanimehr, 2021 ONSC 8569 at para. 14). The burden is on the party seeking to set aside the agreement to bring themselves within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement (Faiello v. Faiello, 2019 ONCA 710, 438 D.L.R. (4th) 91, at para. 20).
In general, the cases confirm that the court will respect the rights of individuals to enter into separation agreements and the associated expectation that the parties do so in order to achieve certainty and to avoid having their disputes adjudicated before the courts (Goulding v. Keck, 2014 ABCA 138, 572 A.R. 330, at paras. 26-27; Nisbett v. Nisbett, 2010 ONSC 4381, at para. 51; and Carvalho v. Couto, 2023 ONSC 4975 at para. 20).
The latest word on this topic, strongly reinforcing the respect to be given to agreements negotiated between parties, comes from the Supreme Court of Canada’s recent decision in Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4th) 1. In that decision, in holding that an agreement resolving property issues which did not satisfy Saskatchewan’s statutory requirements for interspousal contracts was nonetheless enforceable, Karakatsanis J. said at para. 8 that “Given the respect for spousal autonomy reflected in both the legislation and the jurisprudence, unless the court is satisfied that the agreement arose from an unfair bargaining process, an agreement is entitled to serious consideration.”
In considering whether to uphold a domestic agreement or individual terms of such an agreement, it is reasonable for the court to rely on a plain reading of the contract (Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418 and Hartstein v. Ricottone, 2016 ONCA 913).”
January 16, 2026 – Contempt Sentencing: Not to be used a Motion to Change But…
“Accordingly, my conclusion is that this matter must proceed to a focussed Motion to Change which will review the Final Order in light of what has transpired in the past two years. I have already expressed my view to the parties that the contempt motion process is not to be used as a Motion to Change. It is not for this court to start tinkering with the Final Order despite the fact that the record before the court provides ample evidence for a judge to proceed with the Motion to Change.
In the meantime, the Applicant’s conduct and contemptuous behaviour merits a finding that it is not in the child`s best interest that the Applicant move on to Stage 2 of the parenting time provisions of the Final Order. His contemptuous behaviour and obvious desire to undermine the Respondent’s role as the decision-making parent must be considered in a Motion to Change prior to the Applicant having unsupervised parenting time.”
January 15, 2026 – Granting a Stay Pending Appeal
“An order that is not stayed automatically may be stayed pursuant to r. 63.02(1) of the Rules of Civil Procedure. The test for staying an order pending appeal is established in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to determine whether a stay is in the interests of justice considering the following three factors:
(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;
(2) whether the applicant would suffer irreparable harm if the application were refused; and
(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
The relative strengths of these factors need not be equal, but all three factors must be satisfied for the court to grant a stay: Carvalho Estate v. Verma, 2024 ONCA 222, at para. 5; R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12. I will analyze each factor in turn.
First, when making a preliminary assessment of the merits, the court must keep in mind the standard of review on appeal: Carvalho Estate, at para. 8. Absent an error of law or a palpable and overriding error of fact, the trial judge’s decision will be upheld on appeal: Carvalho Estate, at para. 8; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 104. However, the threshold for finding a serious issue is low: Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. The Supreme Court of Canada in RJR-MacDonald Inc., at p. 337-38, noted:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.”
…
Second, irreparable harm is characterized by its nature, rather than its magnitude. In other words, it is usually harm that cannot be quantified or cured: RJR-MacDonald Inc., at p. 341. Although Michael spoke about his ongoing financial difficulties, he did not demonstrate that paying child support would result in “permanent and non-compensable harm”: Temagami, at para. 11.
Finally, when assessing the balance of convenience, the court on a stay motion must recognize that the matter was previously adjudicated and the order must be regarded as prima facie correct: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 678, citing Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.), at p. 132. The interests of third parties might also be relevant at this stage: Ducharme v. Hudson, 2021 ONCA 151, at para. 25. In staying the child support order, the parties who would suffer are the children.”
January 14, 2026 – Relocation Cases
“Relocation cases are tough enough. Life-altering decisions about infants shouldn’t be left to the randomness of which subsidized housing authority happens to have an opening at any given time.”
January 13, 2026 – Temporary Spousal Support
“In Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at paragraphs 65 – 68, Kraft, J. summarized the general principles that apply on motions for temporary spousal support as follows:
a) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant need and the other party has the ability to pay.
c) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
d) The primary goal of interim spousal support is to provide income for a dependent spouse from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.
f) The Spousal Support Advisory Guidelines is a non-binding guideline that provides a “valuable litmus test” for assessing both the range within which spousal support, or final, should be ordered and the duration of such support.”
January 12, 2026 – Assessing Credibility
“As in all cases, the credibility and reliability of witnesses are important considerations, particularly where there are different versions of events advanced by the parties.
In assessing credibility, the Court is concerned with the witnesses’ truthfulness: R. v. C.(H.), 2009 ONCA 56 at para. 41. Reliability involves consideration of the accuracy of the witnesses’ testimony, considering their ability to accurately observe, recall and recount events in issue: R. v. C.(H.), ibid. A credible witness may provide unreliable evidence, as it is possible that the witness has misperceived events, has a poor memory or could simply be wrong. Ultimately, the Court must assess not merely the witnesses’ truthfulness, but also the accuracy of their evidence.
As stated by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 at para. 49: “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”
Justice Nicholson, in Christakos v. De Caires, 2016 ONSC 702, citing with approval Novak Estate, Re, referenced the following:
In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:
There are many tools for assessing credibility:
a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.
b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.
c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133(B.C. C.A.), it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.
d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99(N.S. C.A.) [at paras.] 70-75).
e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. ( v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39(Ont. C.A.) [at paras.] 51-56).
There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.) at [para.] 93 and R. v. Howe supra). [Emphasis in original.]: Christakos v. De Caires, 2016 ONSC 702 at para. 10.
The Ontario Court of Appeal in R. v. Wills stated the following about inconsistencies:
… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31: R. v. Wills, 2018 ONCA 138, at para. 33, citing with approval R. v. M.(A.), 2014 ONCA 769, at paras. 12 to 14.”
January 9, 2026 – Meaning of “Cohabit”
““Cohabit” is defined in section 1 of the [Family Law] Act to mean “to live together in a conjugal relationship, whether within or outside marriage.” In Pope v. Pope, 1999 CanLII 2278 (ON CA), the Ontario Court of Appeal has found that the eligibility factor of being married is not “determinative of the meaning to be given to “cohabitation” in s.5(6)(e).” In that case, the court saw “no reason not to import the statutory definition (s.1(1)) of “cohabit into s.5(6)(e).”
January 8, 2026 – Varying Temporary Support Orders
“In Edisbury v. Edisbury, 2022 ONSC 2407, starting at para. 33, Finlayson J. described the test to vary an interim support order:
(a) whether there is a strong prima facie case that there has been a material change in circumstances since the time of the order in question;
(b) whether there is a clear case of hardship.
(c) whether there is a situation of urgency; and
(d) whether the moving party comes to court with “clean hands”.”