Siegel's Family Court Calendar

“Mr. Kinnear suggests that the maximization of contact between the children and their mother is in their best interests.  He says that the maximum contact principle would presume at least shared care of the children rather than the present primary residence arrangement.

The maximum contact principle originally arose from s. 16(10) of the Divorce Act, R.S.C. 1985 c. 3 (2d Supp.) which provided that contact between children and their parents should be maximized “as is consistent with the best interests of the child”.  That provision has been repealed as of March, 2021 and replaced by s. 16(6) of the Divorce Act which reads as follows:

(6)  In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

This provision is now echoed in s. 24(6) of the CLRA which is, of course, applicable to this case as the parties never married.

The fact that there is still a “maximization of contact” principle was reviewed by the Court of Appeal in Knapp v Knapp, 2021 ONCA 305.  In that case, the appellant mother made submissions that the maximization of contact principle meant that the onus was on the party who was objecting to shared care.  The answer of the Court of Appeal was an unequivocal no:

The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.

This was confirmed in Brown v. Fagu, 2021 ONSC 4374 where Mandhane J. confirmed [at para. 34] that, “Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s best interests.”   She stated that, at best, “all things being equal, the child deserves to have a meaningful and consistent relationship with both parents.”  In other words, as suggested in the section, the time-sharing arrangement should only be ordered in accordance with the best interests of the children according to the particular circumstances before the court.

Applicant’s counsel cited Bazinet v. Bazinet, 2020 ONSC 3187 as authority for the proposition that shared care would be presumptively in the best interests of the children and that the court should ensure that parenting time is maximized.  However, this case is clearly distinguishable as it was decided under s. 16(10) of the Divorce Act which provided for maximization of contact and which has now been repealed.  At para. 192 of the decision, Petersen J. says that, “whatever stability is offered by the status quo parenting schedule cannot displace the statutorily mandated principle of maximum parental contact unless the evidence establishes that maximum contact would conflict with MA’s best interests.”  If that statement means that maximum contact between both parents overrides the other factors concerning the children’s best interests, I do not believe that is now the law.   In fact, s. 24(6) of the CLRA makes it clear that the quantity of a party’s parenting time must be “consistent with the best interests of the child.””

            Martin v. Bonnell, 2021 ONSC 7755 (CanLII) at 40-45

“Part V of the Insurance Act recognizes two types of beneficiary designations: those that are revocable and those that are irrevocable. A revocable beneficiary designation is one that can be altered or revoked by the insured without the beneficiary’s knowledge or consent (s. 190(1) and (2)). An irrevocable beneficiary designation, by contrast, can be altered or revoked only if the designated beneficiary consents (s. 191(1)). When a valid irrevocable beneficiary designation is made, s. 191 of the Insurance Act makes clear that the insurance money ceases to be subject to the control of the insured, is not subject to the claims of the insured’s creditors and does not form part of the insured’s estate.

It is clear that the interest of an irrevocable beneficiary is afforded much more protection than that of a revocable beneficiary; the former has a “statutory right to remain as the named beneficiary entitled to receive the insurance monies unless he or she consents to being removed” (Court of Appeal decision, 2017 ONCA 182 (CanLII), 134 O.R. (3d) 721, at para. 82). The legislation contemplates only one situation where insurance money can be clawed back from a beneficiary, regardless of whether his or her designation is irrevocable: to satisfy a support claim brought by a dependant against the estate of the now-deceased insured person (Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 58 and 72(1)(f)).”

Moore v. Sweet, 2018 SCC 52 (CanLII) at 15-16

“Although the Minutes were received by the court on October 12, 2021, no final order has been issued or entered.

a)   A judge is not functus until a court order has been issued and entered.  Iredale v. Dougall2021 ONSC 4572 (SCJ); Metropolitan Toronto Condominium Corp. 626 v. Bloor/Avenue Road Investment Inc., [2009] O.J. No. 1205 (SCJ).

b)   An order can be withdrawn, altered or modified by a judge on his/her own initiative or an application of a party until such time as the order has been entered.  Montagne v. Bank of Nova Scotia2004 CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.); Holmes Foundry Ltd. v. Village of Point Edward; Caposite Insulations Ltd. v. Village of Point Edward 1963 CanLII 197 (ON CA); N.S. v. R.M. 2020 ONSC 3359 (SCJ); Wharry v. Wharry, 2019 ONSC 2895 (SCJ); Clement v. Clement, 2015 ONSC 5654 (SCJ).

c)    A judge can reconsider their decision until the order is drawn up and entered.  Scott v. McGrail2018 ONSC 720 (SCJ).”

         Nuell v. Guay, 2021 ONSC 7700 (CanLII) at 30

“Add to the recipe for disaster one further ingredient – a self-represented litigant.  One who manages to try the patience of the Judge to a degree that is beyond description.  Frequent interruptions of others who are speaking, including myself.  Huffs and puffs from the counsel table while others are testifying.  Sighs.  Shaking of the head in disgust or disagreement.  Verbal outbursts, while seated, from the counsel table while others are testifying.  A ringing cellular telephone in the Courtroom, more than once.  Documents that cannot be found.  Special (and unreasonable) requests for things like immediate recordings or transcripts of entire day’s proceedings and the ability to stay inside the sealed Courtroom after hours to work.  Crying.  Complaining about having no legal representative.  Complaining about having too many boxes of documents.  Complaining about not having enough time to prepare.  Engaging in frequent lengthy diatribes with the Court.  Asking witnesses irrelevant questions.  Asking witnesses the same question over and over and over again.  Asking convoluted, incomprehensible, compound, disjointed and extremely lengthy questions in cross-examination, after receiving much assistance from the Court to try to avoid that.  Getting bogged-down in the tiniest of details from eons ago, despite repeated warnings from the Court to focus on the key issues at trial.  Giving evidence from the counsel table.  Editorializing during cross-examination of opposing witnesses.  Failing or refusing to comply with repeated suggestions by the Court as to what issues to focus on in cross-examination.  Failing or refusing to comply with clear and repeated warnings from the Court, to the point where costs were ordered, twice, to sanction verbal outbursts.  An opening statement that needed to be rescued by this Court in order to have any relevance at all.  Evidence-in-chief from the witness box that required constant reminders by this Court to stay on focus and to talk about facts that are relevant to the issues to be decided. Evidence in cross-examination that was long-winded, repetitive, and often delivered with a snarky and sharp tone, despite a concerted effort by counsel for the opposing party to be polite and straightforward.  Direct examinations that meandered and were chock-full of improper questions.  Being late for Court.  Flagrantly disobeying rulings of the Court by, for example, continuing to speak about something in the witness box that the Court had just ruled was improper and shall not be discussed.  And, finally, despite this Court spending more than one hour discussing the purpose of a closing address and answering numerous questions on that topic, and after having the ensuing weekend to prepare the closing argument, delivering one that was largely irrelevant and improper.”

         Kirby v. Kirby, 2018 ONSC 6958 (CanLII) at 5

“The wife wishes to satisfy a small portion of the EP she owes the husband by way of a direct rollover from her pension into a LIRA or LIF in the name of the husband to the extent allowed by her pension plan administrator in the sum of $8,069.42. The husband did not oppose this request.

Pursuant to s. 10.1 of the FLA,

   …

(3)  An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

(4)  In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. 1. 1. 1. 1. 1. 1. The nature of the assets available to each spouse at the time of the hearing.
                  2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
                  3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
                  4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
                  5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

As can be seen, even before the legislation was changed, the court was empowered to transfer property from one spouse to the other in order to satisfy an EP obligation. However, courts could seldom transfer pensions without the consent of the parties because of various statutes governing those pensions.  Now s. 10.1 of the FLA has been enacted in order to overcome that problem. That does not mean, however,  that a transfer of a lump sum will always be granted.  In fact, the court has discretion and should consider the matters outlined in subsection (4) together with “such other matters as the court considers appropriate” : see VanderWal v. VanderWal, 2015 ONSC 384, para. 9.

There is not presumption of statutory onus that an EP will be made by a transfer of a lump sum out of a pension plan. Each case depends on its own facts.”

            Ramezani v. Najafi, 2021 ONSC 7638 (CanLII) at 151-154

“I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:

• • • •  The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
      • It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
      • Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
      • Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
      •  While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute(para. 159);
      •  As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
      • Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
      • The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
      •  In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions(para. 157).

Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn-Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”

            Minish v. Timmons, 2021 ONSC 7622 (CanLII) at 46-47

“Is there any distinction between striking out pleadings and prohibiting future filings?  The applicable Family Law Rules regarding this question in this particular case are Rules 1(8)(c); 1(8.4) and 10(5), which read as follows:

1(8)  If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c)  an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party,

1(8.4)  If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. 1. 1. 1. 1. 1. 1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
                  2. The party is not entitled to participate in the case in any way.
                  3. The court may deal with the case in the party’s absence.
                  4. A date may be set for an uncontested trial of the case.

10(5)  The consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply, with necessary changes, if a respondent does not serve and file an answer.

Rule 1(8) (c) includes “notice of motion” and “any other document filed by a party” in the list of documents that may be struck out.  However, Rule 1(8.4) does not include either of those items in its corresponding list of documents.  Therefore, the striking of a notice of motion does not have clearly-defined consequences.  Obviously, the relief sought in a notice of motion that is struck out will not be granted, but is the moving party precluded from seeking the same relief at a future date?  If the latter, how is the analysis influenced by the jurisprudence under Rule 14(21), wherein the court may prohibit future motions without permission only where a party is found to have abused the court’s process?  Is non-compliance under Rule 1(8.4) akin to abuse of process under Rule 14(21)?  Although these questions are not directly before me at this time, I highlight them as they may well present themselves should Father seek to revive his motion vis-à-vis the residency arrangements for C.G.S.

In contrast, the connection between Rule 10(5) and Rule 1(8.4) clearly confirms that the striking out of an Answer is equivalent to a prohibition on its future filing.  Thus, the analysis applies equally.  Father argues that, practically speaking, extensions of thirty (30) days to serve and file Answers are granted routinely even in the face of the language of Rule 10(5).  He submits that it would be procedurally unfair to him not to provide a reasonable extension to serve and file his responding documents.  Further, the absence of his participation would negatively impact upon the Court’s ability to address critical parenting issues for the parties’ children.  These submissions go not to the scope of potential relief under Rule 10(5) but rather to the question of appropriate remedy; they will be addressed at that stage of the analysis.”

         C.T. v. C.S., 2021 ONSC 7578 (CanLII) at 20-22

“In making an order for spousal support, a trial judge must consider “the condition, means, needs and other circumstances of each spouse”, including (a) the length of time the spouses cohabited, (b) the functions performed by each spouse during cohabitation, and (c) any order, agreement or arrangement relating to support:  Divorce Act, s.15.2(4).  In applying this section of the Divorce Act, I am mindful of the following:

a)    The word “condition” has a flexible meaning that includes, among other things, social standing or position of a person in the community and also the person’s physical and mental condition: Harris v. Harris, 2005 CanLII 10889 (Ont. S.C.), at para. 23.  A recipient spouse’s health condition may be relevant if it prevents them from working or interferes with their ability to contribute to their own support.  In some circumstances the law may require that a healthy spouse continue to support a disabled spouse, absent contractual or compensatory entitlement: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 48; Gray, at para. 28.

b)   The word “means” is broader than income.  Determining a party’s means may include consideration of such things as a substantial equalization payment, the availability of non-monetary support by family members (e.g. who may provide rent-free housing accommodations), or property ownership that has unrealized potential to generate rental income.

c)    The recipient spouse’s need “should be assessed through the lens of viewing marriage as an economic partnership”: Gray, at para. 27. In determining need, the trial judge “ought to be guided in partby the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased”: Gray, at para. 27 (emphasis added); Marinangeli v. Marinangeli(2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 74. As mentioned above, however, maintenance of the marital standard of living may not be feasible post-separation, particularly in cases where there are concurrent child support obligations.”

K.K. v. M.M., 2021 ONSC 7522 (CanLII) at 41

“Section 31 of the Marriage Act, which is the saving provision to deal with circumstances of non or imperfect compliance with Section 4 of the Act, provides:

1. 1. 1. 1. 31. If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

In the case of Isse v. Said, 2012 ONSC 1829, the court thoroughly canvassed the issue of the validity of a marriage for the purposes of divorce and property considerations. At paragraph 16, Justice Broad analysed Section 31 of the Marriage Act to include the following four necessary elements:

1. 1. 1. 1. 1.   The marriage must have been solemnized in good faith;
            2.  The marriage must have been intended to be in compliance with the Marriage Act;
            3.  Neither party was under a legal disqualification to contract marriage; and,
            4.  The parties must have lived together and cohabited as a married couple after solemnization.”

            Aden v. Mohamud, 2019 ONSC 6493 (CanLII) at 16-17

“Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 19-23