Siegel's Family Court Calendar

“As provided in s. 17(4.1) of the Divorce Act, an order for spousal support made under the Act may be varied where there has been a “material change in circumstances”.  A “material change in circumstances” is a “substantial” change.  There is a wealth of jurisprudence respecting this concept, which need not be reviewed here in detail: it is sufficient to note that a change must be substantial before the court will vary the order.

The phrase “catastrophic change in circumstances” is not a term of art under the Divorce Act and is not a settled concept in Canadian family law.   In Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC), Mazza J. finds (at para. 13):

By the use of the phrase “catastrophic change”, the parties have agreed that it is not enough for the change to be substantial, a term that would define “material” but it must be “disastrous” or “devastating”, terms that would clearly describe “catastrophic”: Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995).  The question to be determined is whether or not the evidence supports the latter definition.

In Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 RFL (6^th) 62 (Ont. SCJ), para. 83, Linhares de Sousa J. found as follows:

With respect to whether this would constitute a “catastrophic change in circumstances”, the parties have not defined this phrase in their Separation Agreement.  One is therefore left to be guided by how the jurisprudence has defined that phrase.  There is no question that the threshold is high.  The cases use such words as “drastic”, “dramatic”, “radical”, and “gross” (see Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 SCR 801; Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC); and Ouellette v. Ouellette, [1994] NWTJ No. 47).

In the recent case of Roberts v. D’Amico, 2021 ONSC 707, Kimmel J. found that the effects of measures taken in response to the COVID-19 pandemic did constitute a “catastrophic change in circumstances” for the payor husband, whose employment at Air Canada was affected profoundly by the reduction in air travel during the pandemic.”

Rokach v. Rokach, 2021 ONSC 7361 (CanLII) at 28-29

“It is appropriate for the court to rely on hindsight evidence, but only in certain circumstances.

In Best v. Best, 1997 CanLII 576 (ON CA), [1997] O.J. No. 4007 (Ont. C.A.), the court grappled with the evaluation of a party’s pension which depended on when that party retired.  The husband had not retired as of the date of trial and the trial decision.  The court stated that post valuation date facts can sometimes be relevant in determining such things as a retirement date assumption.  If subsequent events could reasonably be contemplated on the valuation date, these events may be relevant since the issue to be determined is the probable age of retirement as contemplated by the pension plan holder on the date of valuation.  Facts that were unknown to, or not within the contemplation of the pension holder on the valuation date are not relevant: Best at paras. 20-21.  Given that the eventual retirement age was neither known nor contemplated at the time of the trial, hindsight evidence was not permitted.

At the SCC, this finding was upheld with respect to the use of hindsight evidence, but the SCC opined that a different result may have prevailed had the parties chosen a different method of pension valuation: 1999 CanLII 700 (SCC), [1999] S.C.J. No. 40 (QL) at paras. 104-105.

This limited use of hindsight evidence was further supported in MB v. SBB, 2018 ONSC 4893.  In that case, McGee J. reviewed the caselaw and concluded that the court is generally reluctant to rely on hindsight evidence unless a subsequent change was reasonably foreseeable.  She states at para. 302:

One is to rely exclusively on information available at the time of valuation (whether date of marriage or date of separation), but that information may include realistic outcomes of future events already in the process of unfolding.

Based on the foregoing, hindsight evidence cannot be used to establish an actual value on the date of separation unless there are facts that are known or within the contemplation of the party on the date of separation, which facts are born out by future events.”

            Le v. Nguyen, 2022 ONSC 6265 (CanLII) at 24-28

“It is, perhaps, counter-intuitive that fostering a healthy relationship with the other parent may enhance the likelihood of a relocation Order being made. In O’Brien v. Chuluunbaatar, 2021 ONCA 555, the Court of Appeal upheld a trial judge’s Order permitting a mother to relocate to Mongolia with the parties’ seven-year old son, born and raised in Ontario. Pivotal to the best interests’ analysis were the benefits to the child of the mother’s enhanced emotional, psychological, social and economic well-being if relocation was permitted, and the trial evidence that

“…even with the relocation, the mother would facilitate the relationship between the child and the father, which the mother recognized as important. On the trial judge’s findings, the mother has always followed the court ordered access; been generous with additional access; encouraged telephone access between the father and the child even when they were in Mongolia; and, allowed the father to attend her residence for access in a period when the father had mental health difficulties.”: Ibid at para. 26.

In Bourke v. Davis, 2021 ONCA 97, also a relocation case, the trial judge allowed the mother of the parties’ two young children born and raised in Kitchener, Ontario, to move with her to Redmond, Washington where her new husband had found employment. A s.112 OCL report had recommended against the move because it would adversely impact the father’s involvement in the children’s health, education and religion. In upholding the move, the Court of Appeal observed that the trial judge had found that

“… there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their dental care, additional access time for the [father], education issues, and the arrangement of events such as birthday parties.” Ibid, at para. 23.

          A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 138-139

“Counsel points to the comments of Justice Jain at paragraph 25 of Simcoe Muskoka Child, Youth and Family Services v. J.K et al, 2021 ONSC 1855, in which Her Honour confirmed that a temporary mental health breakdown does not pose a risk to the children if: concerns are being appropriately addressed; the parent is able to care for the child safely; and there is a safety plan in place.  I agree with this analysis.”

The Children’s Aid Society of the Regional Municipality of Waterloo v. P.S. and K.K., 2024 ONSC 6053 (CanLII) at 18

“The court notes the special provisions in subsection 24(4) of the Act relating to family violence. The following paragraphs provide further commentary about this significant issue.

The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. 1. 1. 1. 1.   The recent amendments to the Divorce Actrecognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
            2.   The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
            3.   Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children.  These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate.  A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private.  Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.

Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.

Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim.  See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.”

          N.K.M. v. K.E., 2024 ONCJ 551 (CanLII) at 15-24

“Non-compliance with a page, spacing, or font requirement of the Practice Direction undermines the direction given by the Chief Justice of this Court, interferes with the administration of justice because of the workload problems it creates for judges, and can result in unfairness to an opposing party who does comply with the Practice Direction.

…

It appears to me that an express rule in both the Family Law Rules and the Rules of Civil Procedure, that conferred authority on the Court to hold lawyers to account for obvious breaches of the Practice Directions issued by the Chief Justice is the most practical solution.  Given the frequency with which there is non-compliance with the Practice Direction, I would suggest this is a necessary rule amendment and recommend that the respective rules committees consider such an amendment.”

          Ramdoo v. Houlden, 2024 ONSC 5994 (CanLII) at 4, 13

“A finding that a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error: Fockler v. Spiegel, 2023 ONCA 148, at para. 25; Dass v. Kay, 2021 ONCA 565, at para. 29.”

          Gomes v. Da Silva, 2024 ONCA 792 (CanLII) at 10

“Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

The jurisprudence for imputation of income sets out the following:

a)  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. Pauli2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).

b)  The Ontario Court of Appeal in Drygala v. Pauliset out the following three questions which should be answered by a court in considering a request to impute income:

(i) Is the party intentionally under-employed or unemployed?

(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

(iii) If not, what income is appropriately imputed?

c)  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 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

d)   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.

e)   As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

f)   A self-employed person has the onus of clearly demonstrating the basis of his or her net income.  This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes.  See Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.).

g)   The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship.  The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 CanLII 26573 (ONCA).

h)   The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income.  See: Smith v. Pellegrini,2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25931 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719.

i)   A person’s lifestyle can provide the basis for imputing income.  See: Aitken v. Aitken[2003] O.J. No. 2780 (SCJ); Jonas v. Jonas[2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 (CanLII).”

Mpamugo v. Nyeche-Woluchor, 2022 ONCJ 488 (CanLII) at 88-89

“In Ahluwalia v. Ahluwalia, 2023 ONCA 476, paras. 1, 99, 101, the Court of Appeal for Ontario recognized that: “the relatively recent addition of family violence considerations reflects Parliament’s awareness of and concern about the devastating effects of family violence on children” and that it is an important consideration when developing a parenting plan. The Court notes that family violence can have “widespread and intergenerational effects.” In Barendregt v. Grebliunas, 2022 SCC 22, para. 143 (citations omitted), the Supreme Court of Canada stated:

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

The Government of Canada explains that a child’s direct exposure to family violence (e.g., seeing or hearing the violence) or indirect exposure (e.g., seeing that a parent is fearful or injured) is itself recognized as family violence and a form of child abuse: Government of Canada, Department of Justice, The Divorce Act Changes Explained (23 February 2022).

As I discussed in S.S. v. R.S., paras. 31-47, the family violence provisions in both pieces of legislation are consistent with Article 19 of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990, accession by Canada 13 December 1991), which grants children the right to state protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”: In General Comment 13, the UN Committee on the Rights of the Child provides a similarly expansive definition of violence and identifies exposure to domestic violence and corporal punishment (including slapping and hitting) as forms of violence that impact children uniquely: General Comment 13: The right of the child to freedom from all forms of violence, UNCRC, 2011, UN Doc. C/GC/13. The Committee notes the devastating impact of violence on children’s survival and their “physical, mental, spiritual, moral and social development”: para. 15. It states that both the short- and long-term health, development, and behavioural consequences of violence against children and child maltreatment are widely recognized, and notes that “there is evidence that exposure to violence increases a child’s risk of further victimization and an accumulation of violent experiences, including later intimate partner violence”: paras. 15(a)-(b).”

          A.C. v. K.C., 2023 ONSC 6017 (CanLII) at 23-24

“[the child] R.E. exercised his own autonomy in deciding to live at his father’s home and it may very well be that forcing the Respondent to bring proceedings to change the parenting order may have been a waste of money and judicial resources considering the child’s age of 16 years when he made that choice.  As stated by Perkins J. in L.(N.) v. M(R.R.), 2016 ONSC 809 at para. 137:

If it is not already apparent from the preceding pages, I will say so expressly here: I have been struggling with how to balance or reconcile the powers and duties of the court under the Divorce Act to make custody and access orders in the best interests of the children, on the one hand, with, on the other hand, the children’s growing entitlement to personal autonomy and respect of their views and preferences.

The views and preferences of an older child often therefore result in an order that is not necessarily in that child’s best interests.  The court must recognize that a 16 year old child has a great deal of autonomy and can make decisions that may not be best for him or her.  However, the legislature in this province has confirmed the autonomy of a 16 year old child in legislation affecting children:  for example under the Child, Youth and Family Services Act, the court’s ability to make a residential placement or an access order concerning a child over the age of 16 years is quite limited and most often requires the consent of the child.”

          M.M.B. v. C.M.V., 2024 ONSC 5797 (CanLII) at 27-28