Siegel's Family Court Calendar

“It is important to understand the overall role of this Court in dealing with motions for leave to appeal arbitration awards.  The Supreme Court of Canada has stated that a narrow scope of appellate review in family law matters, in general, promotes much needed finality: Ojo v. Mason, 2013 ONSC 1240 (Ont. S.C.J.), at paras. 19-24; Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at paras. 8-16; and Veneris v. Koh Veneris 2018 ONSC 4164, 2018 CarswellOnt 11297Ontario.

The Court of Appeal specifically applied this idea to motions for leave to appeal arbitration awards in the Superior Court of Justice. The Court of Appeal in Petersoo v. Petersoo, 2019 ONCA 624 (Ont. C.A.), at paras. 35-37, cited a line of jurisprudence indicating that:

[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at pars. 9, 11.

[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court…

[37] Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at para. 20:

So, the starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine and the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties “bargained for finality” using narrow appeal rights. [emphasis added]

What does the court mean by a gatekeeping role?  Does it mean that there is discretion not to grant leave, even if the court finds that the test set out in section 45 of the Arbitration Act is met? I find that it does, or at the very least, it provides the court with a broad range of discretion in determining if the matter justifies an appeal under section 45 of the Act.  In determining whether to grant leave to appeal an arbitration award, this Court must factor in the gatekeeping role played by the court, emphasized by the requirement to obtain leave of the court in the Arbitration Act.”

         A.A. v. R.R., 2021 ONSC 2984 (CanLII) at 11-13

“Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be retried in a subsequent suit between the same parties or their privies, even where it is an issue in a different cause of action: McIntosh v. Parent, 1924 Canlii 401, [1924] 4 DLR 420, at 422.”

            Telatin v. Shoumali, 2021 ONSC 5290 (CanLII) at 21

“Rule 10(1) of the Family Law Rules, O. Reg. 114/99, provides for thirty days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

Rule 1(8.4) reads:

(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. 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.

An “Uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

Rule 23(22) confirms that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given.

It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.”

            Obhan v. Chana, 2021 ONSC 2877 (CanLII) at 5-9

“The CYFSA [Child, Youth and Family Services Act, 2017] changed the considerations for access. A comparison to the CFSA [Child and Family Services Act, 1990] demonstrates this.

The test for access to a Crown ward under the old Act was strict:

59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption. [Emphasis added.]

The onus was on the person seeking access (usually the parent) to establish that the relationship was meaningful and beneficial. There was a presumption against access. And opportunities for adoption were prioritized over other considerations.

This changed significantly when the new Act was introduced. The new Act states that the court shall not make the access order unless it is satisfied that it is in the best interests of the child. Section 104(5) provides:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that theorder or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption. [Emphasis added].

This change is not just semantics. It represents a significant shift in the approach to access for children in extended care.

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive…”

Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 44-49

“Where a party seeks to alter, or to replace any final term of an Order in its entirety, the requirements to bring a Motion to Change (or at least some form of an amended pleading), and to satisfy the material change threshold do not disappear, just because the December 20, 2018 Order was a consent Order, and just because one parent or the other now wants different wording.  See McCall v. Res, 2013 ONCJ 254 ¶ 1-23 and see specifically ¶ 23.

There is nothing new in the amendments to the legislation that would allow otherwise.  In fact, section 18(4) of the new Children’s Law Reform Act states that the amendments, which came into effect on March 1, 2021, do not, in themselves, constitute a material change in circumstances.  Section 29 of the new legislation continues to prohibit a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order.  And section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary ones.

Furthermore, to the extent that others of the parents’ claims would require the Court to change, prior to trial, a pre-existing temporary or final term in an Order, there are different legal questions that apply to those requests, too.  That is not to say that the Court cannot intervene, in a child’s best interests in situation of urgency, even if the motion was procedurally improper.  But as I will explain, I do not find it appropriate to do so in this case regarding almost all of the parties’ claims in their motions.

 I begin with the material change test, required by section 29 of the Children’s Law Reform Act.  Various, well-established principles govern a material change analysis.  See Gordon v. Goertz,1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60.  In this case, I am mindful that the principles should be adapted somewhat because the previous Orders, now in issue, were consent Orders.

Regarding the material change threshold:

(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;

(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;

(c) the focus is on the prior order and the circumstances in which it was made;

(d) the change should represent a distinct departure from what the court (or the parties) could reasonably have anticipated in making the previous order; and

(e) the Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not;

(f) the subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.

And if the Court finds that a material change has occurred:

(g) the Court should consider the matter afresh, without defaulting to the existing arrangement;

(h) the Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;

(i)  the Court must be guided by the statutory criteria set out in section 24 the Children’s Law Reform Act;

(j) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and

(k) the Court should limit itself to whatever variation is justified by the material change in circumstance.

         B.R.M. v. M.A.E.M., 2021 ONSC 2791 (CanLII) at 38-42

“An order under s. 12 order is a discretionary order.  The court may make an order under this section upon balancing the relevant three factors under a contextual approach to the facts. The three factors are succinctly summarized in Bronfman v. Bronfman 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (Ont. S. C.) as follows:

The relative strength of the case made out by the moving party; 

The balance of convenience (or inconvenience); and, 

Irreparable harm.

Under the first factor, the court assesses the strength of the moving party’s case for financial claims, including claims to interests in property. The primary consideration for the court to weigh on this branch of the test is the likelihood that the moving party will be entitled to receive a judgment at trial. Preservation orders are most often brought prior to the final determination of questions of entitlement and the determination by a court of any amount one party is to pay another.  A fact-driven analysis must be made by the court to ascertain whether one party will likely owe funds to the other party under the Family Law Act, or for an equitable claim.  This analysis is often limited by the evidentiary record before the court, and allowances must sometimes be made having regard to the stage of the case at which the motion has been brought and any obstacles the moving party has encountered in obtaining disclosure from the other side.

The Applicant has referred the court to the case of Both v. Both, [2008] O.J. No. 1358.  In Both v. Both, Backhouse J. found that the wife had raised a prima facie case that she is entitled to a substantial equalization payment. Although the parties’ affairs were “very complex and the record is undeveloped” which made “the quantum of the wife’s equalization payment very difficult to assess even on a preliminary basis”, there was a common understanding that  the husband would owe the wife a fairly significant sum of money.

In Bronfman, Sachs J. held that “there are certain cases where the factual record, and the applicable  legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount”. In such cases, the first factor will be given heavier weight than perhaps the other two remaining branches of the test.  Although the record was not fully developed, Justice Sachs ultimately granted a preservation Order as both sides had not been in a position to obtain their valuations of assets.

…

In the second part of the test, the court is required to look at the inconvenience the order would cause to the Respondent, balanced against the effect, or risk, that would be caused to the Applicant if the assets were disposed of before trial.

Justice Kiteley in Adler v. Adler, 2016 ONSC 2414 wrote that the objective of a preservation order is to “[respond] to the need to create a situation where the Applicant’s claims for an equalization payment are protected, and her claims for support are not impaired or defeated”.

In Adler, the court stated that the more complex and the more need the responding spouse has for unfettered flexibility in his financial affairs, the greater the need to make an order pursuant to sections 12 and 40.  Kiteley J. explained that, while the court appreciates the responding party’s necessary transactions, such freedom cannot be limited under the guise of ‘convenience’ to the extent where the moving party would be prejudiced. This is particularly highlighted in cases, such as the present one, where there has been a flagrant disregard of court orders.

…

For the third and final factor, the court must examine any crucial or negative effect that a preservation order will cause to either party.  Under this factor, the court also considers whether either party will suffer significant harm if the order is not made.

The Applicant refers again to the decision of Backhouse J. in Both v. Both that featured a risk analysis to determine irreparable harm. In the case of Both, the husband had encumbered the matrimonial home with a $2M mortgage after separation without the wife’s consent, even though he knew or ought to have known her consent was required. The motions judge found that the husband had orchestrated additional large encumbrances and the movement of property from one corporation, in which the wife held an interest, to a corporation in which she did not. The court held that there “is a real risk that if the requested order is not made, that the wife’s equalization claim could be defeated”.”

         Qureshi v. Qureshi, 2021 ONSC 2750 (CanLII) at 46-49, 51-53, 55-56

“The Ontario Court of Appeal dealt with the interplay between ss. 72(1)(f) and 72(7) of the [Succession Law Reform Act] in Dagg v. Cameron Estate, 2017 ONCA 366 (CanLII).  Brown J.A., writing for a unanimous court, framed the issue to be decided as follows at para. 5:

The novel issue raised by this appeal can be stated in the following way: Where a support payor owns a life insurance policy and has been required by court order to name the spousal or child support recipient as the irrevocable beneficiary of the policy, upon the payor’s death what rights does the support recipient have to the policy’s proceeds in the face of a competing claim by another dependant of the deceased brought under Part V of the SLRA?

At paras. 75 and 76, Brown J.A. effectively found that where a payor is subject to a court order that requires her/him to name a support recipient as an irrevocable beneficiary, that portion of the insurance proceeds needed to satisfy support payments is not subject to the “clawback” sections of the SLRA:

I conclude that where, at the time of his death, a spousal or child support payor owns a policy of insurance that is subject to a court order requiring the designation of the support recipient as the irrevocable beneficiary of the policy, s. 72(7) protects from the claw back of s. 72(1) that part of a policy’s proceeds needed to satisfy the deceased’s obligations to the spousal and child support recipients, calculated in accordance with the support orders in place at the time of his death. I reach this conclusion in the following way.

Under both the FLA and the Divorce Act, a court can secure the payment of support obligations by formally granting a charge against property. However, the jurisprudence discloses that the more common practice is for a court to order a support payor to designate the support recipient as the irrevocable beneficiary under a life insurance policy. While colloquially such an order is described as one that “secures” payment of the support obligations in the event of the payor’s death, it would be more accurate to say that such an order makes available a pool of money — the proceeds of the life insurance policy — to satisfy the support payor’s obligations calculated in accordance with the support orders in place at the time of his death.  [Emphasis added.]

The court was clear, however, that not all life insurance requirements described in separation agreements are intended simply as “security” for support payments.  At para. 83, Brown J.A. stated:

Second, [the support recipient]’s rights as a creditor of the deceased in respect of the Policy for the purposes of s. 72(7) flow from court orders. Those rights can be no greater than what the courts could confer under such orders. Under the FLA and Divorce Act, courts only have the jurisdiction to order life insurance beneficiary designations to the extent needed to satisfy support obligations. Such orders can provide no greater protection in the face of a competing claim to the policy’s proceeds by a claimant under Part V of the SLRA. Should parties intend a life insurance policy to operate as a kind of “stand alone” benefit upon the payor’s death, not linked to his obligation to pay child or spousal support, it is open to them to strike such a bargain and memorialize it in a separation agreement: Turner v. DiDonato, 2009 ONCA 235 (CanLII), 95 O.R. (3d) 147, at para. 38. [Emphasis added.]

Thus, I must determine whether or not the life insurance clause in the Birnies’ Separation Agreement was intended to act as a pool of funds to “secure” Mr. Birnie’s spousal support obligations or whether it is a “stand alone” benefit as described in Turner v. DiDonato.”

         Birnie v. Birnie, 2019 ONSC 2152 (CanLII) at 27-30

“A grave risk of harm to a child’s mother can establish a risk to the child as well:  Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at para. 41.”

Zafar v. Saiyid, 2018 ONCA 352 (CanLII) at 18

“The Father submits that Madison should be required to contribute $2,000 of her own earnings towards her education. He also points out that her student loan covered almost all of her educational costs. The Mother believes the Father should have to pay, irrespective of the student loan, as it would not have been necessary had he contributed.

It is well established that a child should contribute to their own education to the best of their ability. They do not have to contribute every cent they earn, but their earnings must be considered and balanced with the income of their parents: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at paras. 39-42.

In addition, when determining the proper expense to be paid, the court is to consider any subsidies, benefits or income tax deductions or credits received: s. 7(3), Guidelines. A student loan is not considered a “benefit” within the meaning of s. 7(3) of the Guidelines: Roth v. Roth, 2010 ONSC 2532, at para. 16(e). The receipt of a student loan by a child will not always eliminate the obligations of a paying parent. The court must determine the reasonableness of taking such loans into account in the circumstances of each case: Coghill v. Coghill (2006), 2006 CanLII 28734 (ON SC), 30 R.F.L. (6th) 398, at para. 44; Roth, at para. 16.

Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45.

Madison should be commended for her hard work and her contributions to her education. This skill will bode well for her in the future. Given her earnings, it is only reasonable that she contributes her share. The sum of $2,000, as suggested by the Father, is a reasonable contribution.”

         Jackson v. Jackson, 2021 ONSC 2614 (CanLII) at 58-62

“The importance of relevant financial disclosure in family law cases is well-recognized.  Delays in disclosure impede the progress of an action, act to the disadvantage of the opposite party, and impact the administration of justice: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11-12.

When a spouse controls a corporation and their income is necessary to determine the amount of child support, the Guidelines require that the payor spouse provide the other spouse with corporate documents.  Those documents include, for the corporation’s three most recent taxation years: the financial statements of the corporation and its subsidiaries; and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal with at arm’s length: see ss. 21(2) and 21(1)(f) of the Federal Child Support Guidelines, SOR/97-175.

When a spouse is a shareholder, director or officer of a corporation, the pre-tax income of that corporation is relevant to the determination of their annual income. If the court is of the opinion that the amount of the spouse’s income does not fairly reflect all of the money available to the spouse for the payment of child support, the court may include all or part of the pre-tax income of the corporation. All amounts paid by the corporation as salaries, wages, management fees, or other payments or benefits to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances: see s. 18 of the Guidelines.

If the payor spouse does not control the relevant corporation, there are two provisions of the Family Law Rules, O. Reg. 114/99, that permit the court to make orders for document disclosure from a non-party:

i.    If a document is in a non-party’s control that is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may order the non-party to produce the document to the party: Rule 19(11).

ii.    The court may order a non-party to disclose information where:

a.    it would be unfair to the party who wants the disclosure to carry on with the case without it;

b.    The information is not easily available by another method; and

c.    The disclosure will not cause unacceptable delay or undue expense: Rule 20(5).

On this motion, the onus is on the mother to satisfy the court that production should be ordered: see Weber v. Merritt, 2018 ONSC 3086, 11 R.F.L. (8^th) 177, at para. 29.

Non-party disclosure in family litigation is generally more permissible than under the Rules of Civil Procedure, and judges should exercise “liberal and generous discretion” in ordering non-party disclosure in the family context. This is because it is common in family litigation for parties to make use of close family members for purposes of concealing income or assets: see Weber at para. 33; Hagey-Holmes v. Hagey, 2005 CanLII 23324 (ON SC), [2005] O.J. No. 2760 (Ont. S.C.), at para. 32.

It is not uncommon in the family law context for family members and their businesses to align themselves to support and protect a family member defending a property or support claim: see Weber at para. 34; Loeb v. Loeb, 2013 ONSC 1730, 34 R.F.L. (7th) 149, at para. 42.”

         Hohl v. Hohl, 2021 ONSC 2182 (CanLII) at 20-26