The Canadian Abridgment eDigests - Family Law - … · The Canadian Abridgment eDigests - Family Law - Ontario ... wife's name alone so it could be listed for sale ... The Canadian

The Canadian Abridgment eDigests - Family Law - Ontario

The Canadian Abridgment eDigests -- Family Law - Ontario

2012-46 November 12, 2012

FAM.III.2.a Subject Title: Family law

Classification Number: III.2.a

Division of family property -- Entitlement -- General principles

Husband and wife were born in Jamaica in 1948 and started dating shortly after wife immigrated to Canada in 1970 -- Husband and wife began to live together in 1971 and married in November 1973 -- Husband and wife had two children -- Husband worked as heaving equipment operator from 1971 to 2008 -- Wife worked at factory jobs until her employment ended in 1991 and she was unable to find replacement job -- Following wife's loss of employment husband and wife were financially over-extended and were evicted from their home in 1991 -- Husband and wife's living arrangements varied considerably until they began definitively living separate and apart in 1998 -- Wife commenced action for equalization of net family property and spousal support in amount of $300 per month -- Action for equalization was dismissed -- Family had no assets; husband's only asset was his pension in gross amount of $1,836.27 per month -- Mother's action for equalization was brought beyond time limitation in Family Law Act and wife had not asked for extension of time to bring that claim.

Stewart v. Wilson (2012), 2012 CarswellOnt 5173, 2012 ONSC 2523, A.D. Grace J. (Ont. S.C.J.) [Ontario]

FAM.III.5.d.iv.G Subject Title: Family law

Classification Number: III.5.d.iv.G

Division of family property -- Assets which may be excluded from property to be divided -- Business and employment assets -- Pension plans -- Ontario

Same-sex parties, JB and PSP, separated in 2007 after 24-year common-law relationship -- Court order in March 2009, made on consent of parties and minutes of settlement, provided that JB would pay spousal support of $2,000 per month, varied to $1,900 per month, as of March 2009 -- PSP abandoned claim for unjust enrichment -- JB, school principal, earned $107,868 per year -- PSP, substitute teacher with annual income of $20,000 was imputed annual income of $40,000 -- JB terminated employment within days of signing settlement and did not disclose receipt of $120,162.79 severance -- JB accumulated spousal support arrears of $57,465.99 -- JB cashed out pension with commuted value of $569,783.06 -- Parties brought respective motions for various relief, and issue arose as to payment of lump sum spousal support from retirement account -- JB was authorized to withdraw $24,150 from locked-in retirement account (LIRA) -- Lump sum spousal support awards could be made to unmarried spouses and would immediately satisfy arrears -- JB never intended to comply with minutes of settlement -- JB stopped paying spousal support despite significant severance -- There was real risk that JB would not provide periodic support -- JB had means to pay large lump sum

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from retirement account -- Mid-point lump sum, taking into account spousal support of $1,900 per month for 15 years, and income tax implications, amounted to $223,891 -- Sum of $200,000 was ordered transferred into locked-in retirement account in PSP's name to secure further support -- Amount of $24,150 from LIRA was to be paid on account of arrears.

Brière v. Saint-Pierre (2012), 2012 C.E.B. & P.G.R. 8471, 2012 ONSC 421, 2012 CarswellOnt 1375, 2012 CarswellOnt 1374, 2012 ONCS 421, Robert N. Beaudoin J. (Ont. S.C.J.) [Ontario]

FAM.III.7.b.iii.B Subject Title: Family law

Classification Number: III.7.b.iii.B

Division of family property -- Events after separation -- Sale or dissipation of assets -- Order for preservation of property -- Miscellaneous

Parties were married 27 years and had three children -- One adult child resided with wife and one adult child resided with husband -- Neither adult child was under disability -- Third child resided with wife -- Wife brought motion for child and spousal support -- Husband brought motion for preservation order, payment of sale proceeds, to amend answer, to issue certificate of pending litigation, and for table child support for parties child, aged 26 -- Court was not prepared to order either party amount requested for table child support -- There was little evidence in proceeding to determine if adult children continued to be children of marriage -- There was insufficient evidentiary basis to determine whether table support or different amount was appropriate -- Father was to pay child support for third child in amount of $1,129 based on father's income of $132,000 -- There was prima facie case for spousal support -- Income of $12,000 per year was imputed to wife -- Husband was to pay spousal support of $2,600 per month -- Payment resulted in 51% net disposable income lying with applicant and 49% with respondent -- $23,400 was to be paid to wife from sale proceeds in satisfaction of spousal support for 2011 -- Husband's claim for preservation order was dismissed -- Husband did not have prima facie entitlement to equalization payment -- If husband did, there was no likely prospect applicant would dissipate assets in manner that would prevent husband from realizing on claim -- Husband's best claim for equalization cold be satisfied from available proceeds of sale of former matrimonial home now held in trust.

Benvenuto v. Whitman (2012), 2012 ONSC 2696, 2012 CarswellOnt 5643, H. McGee J. (Ont. S.C.J.) [Ontario]

FAM.III.8.f Subject Title: Family law

Classification Number: III.8.f

Division of family property -- Factors affecting equal or unequal division -- Unequal financial contributions







Parties were married 18 years and had one child -- Husband occupied matrimonial home alone since separation -- Wife continued to pay mortgage, management fee and taxes on home -- Wife claimed husband let property get run down -- Husband did not work for last 13 years and hardly contributed to family unit -- Husband had education to be gainfully employed -- Husband did not answer disclosure orders of husband's financial information -- Child was in university -- Husband sold property in another country and invested profit in stock market -- Husband had $15,000 cash locked in bedroom in matrimonial home -- Wife's income was $58,000 -- Wife sought possession of matrimonial home to have it sold -- Wife sought unequal share of net family property to be made in wife's favour -- Wife sought order to child support and s. 7 expenses to be made as lump sum from sale of home -- Court assumed net family properties were equal and no equalization payment was owed by either party to other -- Husband had assets not disclosed to wife that were equal to or greater than wife's assets -- Husband was under employed based on husband's qualifications -- Husband contributed nothing to support of child -- It was appropriate case for lump sum support -- Child's past s. 7 expenses of $15,000 and $45,200 for future expenses for child support and education were to be deduction from husband's proceeds of sale of matrimonial home -- Matrimonial home was to be vested in wife's name alone so it could be listed for sale -- Writ of possession issued.

Li v. Zhao (2012), 2012 CarswellOnt 6029, 2012 ONSC 2121, M.J. Donohue J. (Ont. S.C.J.) [Ontario]

FAM.III.9.b.iii Subject Title: Family law

Classification Number: III.9.b.iii

Division of family property -- Order for division of property -- Factors to be considered in determining nature of order -- Miscellaneous

Parties were married 29 years and had three children who were now grown -- Wife stayed home to care for children -- Husband acknowledged wife was entitled to spousal support -- Husband already paid $425,000 as advance on equalization payment -- Wife sought interim spousal support; advance on wife's equalization payment of $1.075 million; interpretation of order relating to payment of shareholders dividends; and finding husband breached order -- Husband was paying spousal support of $12,734 per month -- Wife sought spousal support of $62,000 per month -- Further equalization payment could not be ordered -- Court did not have enough information to assess reasonableness of wife's request for advance on equalization payment -- Wife was not without means to litigate matter -- Wife received more support than her needs -- Circumstances did not cry out to level playing field -- Minimum equalization payment could not be easily discerned -- Husband was to pay interim spousal support of $20,000 per month based on imputed income of $463,000 to husband -- Dividend payment was to come to end on specified date now that interim spousal support was determined.

Blatherwick v. Blatherwick (2012), 2012 ONSC 2456, 2012 CarswellOnt 5695, Lemon J. (Ont. S.C.J.) [Ontario]

FAM.III.9.c.ii Subject Title: Family law





Classification Number: III.9.c.ii

Division of family property -- Order for division of property -- Order for payment -- Global equalization order

Parties were married five years and had three children -- Wife suffered brain injury as result of motor vehicle accident -- Mother argued she was physically and cognitively able to properly care for children -- Children resided primarily with mother since separation -- Mother had support of mother's family in attending to needs of children -- Mother was found to be incapable of managing property in 2009 -- Mother's heart conditions rendered mother's ongoing health dependent on use of pacemaker -- There was evidence mother was compliant with medication regime and mother's mood remained stable -- Fact mother remained under purview of Public Guardian and Trustee in respect of managing property was not determinative with respect to mother's ability to parent -- Mother was appropriately following up with healthcare professionals and was likely to continue to do so -- It was unlikely children would be placed in any danger related to mother's health situation -- Mother was physically able to care for and make appropriate decisions on behalf of children -- Evidence was that mother's physical and cognitive health improved in significant way since accident and since 2009 -- There was every indication mother's physical and cognitive health would continue to improve over time -- It was in best interests of children to remain in primary care of mother with frequent access to father -- There was no realistic prospect of joint custody -- There was imbalance of power between parties -- Mother was granted sole custody -- Father was to pay child support on ongoing basis of $579 per month based on imputed income of $40,000 -- Father was to pay $16,740 in child support from January 2010 to April 2012 -- Property was valued -- Father was ordered to pay equalization payment of $61,405 -- Proceeds of matrimonial home held in trust was to be paid to mother.

Imam v. Azam (2012), 2012 ONSC 2544, 2012 CarswellOnt 5365, Miller J. (Ont. S.C.J.) [Ontario]

FAM.III.9.c.ii Subject Title: Family law

Classification Number: III.9.c.ii

Division of family property -- Order for division of property -- Order for payment -- Global equalization order






FAM.III.9.c.iii.C Subject Title: Family law

Classification Number: III.9.c.iii.C

Division of family property -- Order for division of property -- Order for payment -- Order regarding pensions -- Immediate division

At trial value of pension was included in equalization -- Husband was ordered to pay spousal support of $2,250 based on income of $175,000 taking into account husband's significant debt load -- Wife's income was $42,170 -- Husband made assignment in bankruptcy resulting in wife receiving less than full entitlement to equalization payment ordered -- Wife sought to re-open trial decision with respect to pension and spousal support -- There was material change in circumstances that justified revisiting trial decision -- Husband was ordered to direct pension administrator to arrange transfer of $49,953 from husband's pension into locked financial account in wife's name -- Husband was ordered to pay spousal support of $2,516 per month.

Banks v. Banks (2012), 2012 ONSC 3963, 2012 CarswellOnt 8432, M.J. Donohue J. (Ont. S.C.J.) [Ontario]

FAM.III.9.d Subject Title: Family law

Classification Number: III.9.d

Division of family property -- Order for division of property -- Order for partition and sale










Parties married in 1983, had three children, and separated in 2009 -- Wife remained in matrimonial home with oldest and youngest child -- Husband brought motion for order for sale of matrimonial home -- Motion dismissed -- Husband submitted that property was worth approximately $900,000, that it was expensive to maintain, and that proceeds could be used to pay down line of credit and allow wife to obtain more modest accommodation -- Wife submitted that sale would be disruptive to both her and youngest child -- Argument to order sale was persuasive since parties had been separated for over three years and parties' financial positions needed to be regularized -- Oldest child was expected to be finished his schooling by end of 2012, and issue of sale of matrimonial home was deferred until after December 31, 2012 -- Wife was expected to pay expenses of matrimonial home from support received from this order.

Strong v. Strong (2012), 2012 ONSC 4645, 2012 CarswellOnt 9876, Thomas A. Bielby J. (Ont. S.C.J.) [Ontario]




Sale of matrimonial home was ordered -- Financial arrangements between parties were readjusted -- It was not tenable for husband to remain in matrimonial home given unfair financial burden on wife and given overall debt situation of parties -- Parties were given opportunity to discuss details how home would be listed for sale and how party's financial obligations would be re-adjusted -- Temporary order issued.

Ward v. Ward (2012), 2012 ONSC 3383, 2012 CarswellOnt 7111, M.J. Hatton J. (Ont. S.C.J.) [Ontario]

FAM.III.10.b.iv.B







Subject Title: Family law

Classification Number: III.10.b.iv.B

Division of family property -- Matrimonial home -- Order for possession -- Factors to be considered by court -- Conduct of spouses



FAM.III.10.e.i Subject Title: Family law

Classification Number: III.10.e.i

Division of family property -- Matrimonial home -- Deductions from proceeds of sale -- General principles

A. claimed 20% interest in businesses and plaza -- Businesses and plaza were in name of T. and sons through corporate defendants -- Matrimonial home was held jointly between T. and E.-F. who were married at time home was acquired -- T. brought motion for order permitting T. to secure line of credit or mortgage on matrimonial home in amount of $400,000 -- T. claimed T., businesses at issue nor children had financial ability to fund litigation costs -- Any advance from line of credit or mortgage was to be used to pay legal fees and disbursements in defending T., sons, and corporate defendants -- Motion was brought on eve of trial -- There were substantial other assets from which E.-F. would be able to recover on judgment if successful -- Family law and corporate claims were being tried together and would be decided at one time -- T. was permitted to encumber matrimonial home up to $250,000 as first charge or security for letter of credit on terms set out.

Aly v. Halal Meat Inc. (2012), 2012 ONSC 2751, 2012 ONSC 2750, 2012 ONSC 2749, 2012 CarswellOnt 5517, Ricchetti J. (Ont. S.C.J.) [Ontario]






FAM.III.10.e.i Subject Title: Family law

Classification Number: III.10.e.i

Division of family property -- Matrimonial home -- Deductions from proceeds of sale -- General principles



FAM.III.11.a Subject Title: Family law

Classification Number: III.11.a

Division of family property -- Practice and procedure -- General principles

Wife obtained judgment for $4 million including substantial lump sum payment for child support of approximately $1.3 million and spousal support of $1.5 million and for equalization payment -- It was alleged husband concealed assets which resulted in preservation and receivership order in aid of execution -- Receiver sought approval of $1.345 million in outstanding professional fees -- Receiver sought authority to pay fees in receiver's discretion once funds were available subject to making immediate payment to wife of $50,000 -- There was to be immediate distribution of $50,000 to wife -- Issue of allocation of amount to outstanding equalization payment and not against outstanding amount in respect of support was to be argued on set date -- All other matters for which receiver sought approval were adjourned to be dealt with at continuation of hearing -- In interim receiver was not to make any distribution in payment of any professional fees -- Order issued approving Absolute and Dominus settlements -- Order issued dealing with liquidation of Manulife assets.




Haunert-Faga v. Faga (2012), 2012 ONSC 2847, 2012 CarswellOnt 6430, Cumming J. (Ont. S.C.J. [Commercial List]) [Ontario]

FAM.III.11.c.i Subject Title: Family law

Classification Number: III.11.c.i

Division of family property -- Practice and procedure -- Institution of proceedings -- General principles



FAM.IV.1.b.v.C Subject Title: Family law

Classification Number: IV.1.b.v.C

Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Economic disadvantage of marriage -- Traditional marriage

Mother and father were married in 1983 -- Mother and father had two children, one of whom, M, was cognitively impaired and suffered from diabetes -- Mother stayed at home and provided primary care to children throughout marriage -- Mother and father separated in 2005 after 22 years of marriage -- After mother and father's separation M continued to live in matrimonial home with father; mother had regular access -- In 2007 mother brought motion for spousal support; father responded with claim for custody and elimination of access -- Father refused to allow mother her court ordered access to M and called police when mother attempted to see M at family home -- Mother's telephone calls to M were intercepted and not returned -- Mother's motion for spousal support was granted -- Father was ordered to pay spousal support to mother in amount of $1,500 per month, retroactive to date of separation, which figure was net of mother's child






support obligation.

Perino v. Perino (2012), 2012 CarswellOnt 6099, 2012 ONSC 328, D.L. Corbett J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.b.v.C Subject Title: Family law

Classification Number: IV.1.b.v.C

Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Economic disadvantage of marriage -- Traditional marriage

Husband and wife were born in Jamaica in 1948 and started dating shortly after wife immigrated to Canada in 1970 -- Husband and wife began to live together in 1971 and married in November 1973 -- Husband and wife had two children -- Husband worked as heaving equipment operator from 1971 to 2008 -- Wife worked at factory jobs until her employment ended in 1991 and she was unable to find replacement job -- Following wife's loss of employment husband and wife were financially over-extended and were evicted from their home in 1991 -- Husband and wife's living arrangements varied considerably until they began definitively living separate and apart in 1998 -- Wife commenced action for equalization of net family property and spousal support in amount of $300 per month -- Action for spousal support was granted -- Husband was ordered to pay spousal support in amount of $375 from June 1, 2004 to September 1, 2008 and $300 per month from October 1, 2008 indefinitely -- Husband and wife had always lived modestly -- Husband and wife had principal responsibility for most of day to day household tasks including cooking, laundry and cleaning -- Husband's employment was far better paying and more secure -- Duration of relationship, division of roles and responsibilities, and history of primary financial dependence on husband's income all supported conclusion that wife was entitled to spousal support -- Husband's conduct indicated that husband had not grasped reality that wife had right to reasonable standard of living, nor his moral and legal obligation -- Husband could and should have paid regular, monthly spousal support.

Stewart v. Wilson (2012), 2012 CarswellOnt 5173, 2012 ONSC 2523, A.D. Grace J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.c.ii Subject Title: Family law

Classification Number: IV.1.c.ii

Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse's annual income -- Pattern of income

Parties married in 1983, had three children, and separated in 2009 -- Wife brought motion for interim spousal support -- Motion granted -- Husband's income over past five years had varied depending on bonuses and other income sources -- Husband argued that his base salary was $210,000 but had not filed up to date income statement -- Entitlement to spousal support was not at issue and husband had not argued that







wife should contribute to her support in meaningful way -- Wife had some limited part-time income as teacher's assistant -- Husband's income was fixed at $300,000 for support purposes, which was less than average of previous five years -- Husband was ordered to pay interim spousal support in amount of $7,500 per month, which was near mid-range as calculated by Spousal Support Advisory Guidelines.


FAM.IV.1.c.iii Subject Title: Family law

Classification Number: IV.1.c.iii

Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse's annual income -- Imputed income

Parties were married 27 years and had three children -- One adult child resided with wife and one adult child resided with husband -- Neither adult child was under disability -- Third child resided with wife -- Wife brought motion for child and spousal support -- Husband brought motion for preservation order, payment of sale proceeds, to amend answer, to issue certificate of pending litigation, and for table child support for parties child, aged 26 -- Court was not prepared to order either party amount requested for table child support -- There was little evidence in proceeding to determine if adult children continued to be children of marriage -- There was insufficient evidentiary basis to determine whether table support or different amount was appropriate -- Father was to pay child support for third child in amount of $1,129 based on father's income of $132,000 -- There was prima facie case for spousal support -- Income of $12,000 per year was imputed to wife -- Husband was to pay spousal support of $2,600 per month -- Payment resulted in 51% net disposable income lying with applicant and 49% with respondent -- $23,400 was to be paid to wife from sale proceeds in satisfaction of spousal support for 2011 -- Husband's claim for preservation order was dismissed -- Husband did not have prima facie entitlement to equalization payment -- If husband did, there was no likely prospect applicant would dissipate assets in manner that would prevent husband from realizing on claim -- Husband's best claim for equalization cold be satisfied from available proceeds of sale of former matrimonial home now held in trust.





Parties were married 29 years and had three children who were now grown -- Wife stayed home to care







for children -- Husband acknowledged wife was entitled to spousal support -- Husband already paid $425,000 as advance on equalization payment -- Wife sought interim spousal support; advance on wife's equalization payment of $1.075 million; interpretation of order relating to payment of shareholders dividends; and finding husband breached order -- Husband was paying spousal support of $12,734 per month -- Wife sought spousal support of $62,000 per month -- Further equalization payment could not be ordered -- Court did not have enough information to assess reasonableness of wife's request for advance on equalization payment -- Wife was not without means to litigate matter -- Wife received more support than her needs -- Circumstances did not cry out to level playing field -- Minimum equalization payment could not be easily discerned -- Husband was to pay interim spousal support of $20,000 per month based on imputed income of $463,000 to husband -- Dividend payment was to come to end on specified date now that interim spousal support was determined.





Mother and father were married in 1983 -- Mother and father had two children, one of whom, M, was cognitively impaired and suffered from diabetes -- Mother stayed at home and provided primary care to children throughout marriage -- Mother and father separated in 2005 after 22 years of marriage -- After mother and father's separation M continued to live in matrimonial home with father; mother had regular access -- In 2007 mother brought motion for spousal support; father responded with claim for custody and elimination of access -- Father refused to allow mother her court ordered access to M and called police when mother attempted to see M at family home -- Mother's telephone calls to M were intercepted and not returned -- Mother's motion for spousal support was granted -- Mother had never finished high school and never had significant employment prior to separation -- Mother had limited employment opportunities, in large part because of role she played in marriage -- Mother was working only part-time, however if she was working 30 hours per week at $10 per hour she would earn roughly $15,000 per year -- $15,000 income was imputed to mother -- Father was intentionally underemployed -- Father had worked as aircraft mechanic, both as employee and in his own business, during marriage -- On balance, reason father was not earning income he had earned historically was because he had been spending time looking after M -- It was not open to father to unilaterally decide that he would reduce work to care for M, and transfer cost of his decision to mother -- $60,000 per annum was imputed to father.


FAM.IV.1.c.vii Subject Title: Family law






Classification Number: IV.1.c.vii

Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse's annual income -- Miscellaneous



FAM.IV.1.e.viii Subject Title: Family law

Classification Number: IV.1.e.viii

Support -- Spousal support under Divorce Act and provincial statutes -- Interim support -- Quantum



FAM.IV.1.f.iii.B Subject Title: Family law

Classification Number: IV.1.f.iii.B





Support -- Spousal support under Divorce Act and provincial statutes -- Lump sum award -- Factors to be considered -- Respondent unlikely to make periodic payments

Same-sex parties, JB and PSP, separated in 2007 after 24-year common-law relationship -- Court order in March 2009, made on consent of parties and minutes of settlement, provided that JB would pay spousal support of $2,000 per month, varied to $1,900 per month, as of March 2009 -- PSP abandoned claim for unjust enrichment -- JB, school principal, earned $107,868 per year -- PSP, substitute teacher with annual income of $20,000 was imputed annual income of $40,000 -- JB terminated employment within days of signing settlement and did not disclose receipt of $120,162.79 severance -- JB accumulated spousal support arrears of $57,465.99 -- JB cashed out pension with commuted value of $569,783.06 -- Parties brought respective motions for various relief, and issue arose as to payment of lump sum spousal support -- Sections 34(1)(a) and (b) of Family Law Act granted court broad discretion to make lump sum support -- Lump sum spousal support awards could be made to unmarried spouses and would immediately satisfy arrears -- JB never intended to comply with minutes of settlement -- JB stopped paying spousal support despite significant severance -- There was real risk that B would not provide periodic support -- JB had means to pay large lump sum from retirement account -- Lump sum was appropriate under circumstances -- JB was authorized to withdraw $24,150 from locked-in retirement account (LIRA) -- Mid-point lump sum, taking into account spousal support of $1,900 per month for 15 years, and income tax implications, amounted to $223,891 -- Sum of $200,000 was ordered transferred into locked-in retirement account in PSP's name to secure further support -- Amount of $24,150 from LIRA was to be paid on account of arrears.

Brière v. Saint-Pierre (2012), 2012 C.E.B. & P.G.R. 8471, 2012 ONSC 421, 2012 CarswellOnt 1375, 2012 CarswellOnt 1374, 2012 ONCS 421, Robert N. Beaudoin J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.f.iii.G Subject Title: Family law

Classification Number: IV.1.f.iii.G

Support -- Spousal support under Divorce Act and provincial statutes -- Lump sum award -- Factors to be considered -- Economic disadvantage of marriage

Mother sought spousal support from date of separation to trial -- Parties were never married -- They began living together in June 2004 -- First child was born in August 2004 -- Parties had turbulent relationship -- Parties separated in March 2009 after police were called to home -- Father was charged with three counts of assault and one count of assault causing bodily harm -- He denied all allegations but plead guilty to one count of assault -- Child remained in mother's custody -- Father was under bail restrictions to have no contact with mother but second child was conceived -- Father denied paternity -- DNA testing proved he was father -- Father's parents had been actively involved in children's lives -- Mother relied on grandparents to provide children with things she could not give them -- They also were able to transport children after father sold mother's vehicle -- Father was in relationship with mother's ex-best friend -- Mother claimed that relationship began while parties were still together, which father denied -- Parties home had gone into foreclosure and sale resulted in deficit -- Father declared bankruptcy -- Mother experienced housing problems -- She had lived with sister and grandparents -- She now rented house -- Mother maintained that father had serious anger problems throughout relationship -- She outlined several incidents were father assaulted her -- Father denied having anger problems or every physically assaulting mother -- Mother also claimed that father had unresolved problem with marijuana use -- Father denied having drug problem -- Father's access with children was ordered to be supervised by his parents -- Father maintained that mother did not have enough interest in children and that she abandoned them to paternal grandparents -- Application granted -- Mother was entitled to spousal support -- Father was primary breadwinner and mother assumed





primary responsibility for children -- Mother worked part-time but availability and viability in employment market had been affected by pregnancies -- Her employment prospects were undermined by father's decision to sell vehicle -- Mother experienced economic disadvantage in that she applied childhood savings to purchase home and lost investment -- In circumstances, father was ordered to pay lump sum spousal support of $7,500.

Ridehalgh v. De Melo (2012), 2012 CarswellOnt 9198, 2012 ONSC 4275, Pazaratz J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.j.i Subject Title: Family law

Classification Number: IV.1.j.i

Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination -- General principles



FAM.IV.1.j.iii.B Subject Title: Family law

Classification Number: IV.1.j.iii.B

Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination -- Change in financial circumstances -- Change in needs of spouse

Respondent was ordered to pay child and spousal support and percentage of medical and s. 7 expenses in temporary order granted in June 2010 -- Respondent brought motion seeking to vary child and spousal support -- Applicant brought motion for order striking respondent's pleadings for arrears of support and failure to pay previous costs award -- Respondent's motion was granted in part -- Spousal support was reduced from $600 to $121 per month -- Applicant's income at time of motion had increased from approximately $17,000 in 2010 to approximately $24,755.

Phillips v. Phillips (2012), 2012 ONSC 2999,







2012 CarswellOnt 6534, Fitzpatrick J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.j.iii.C Subject Title: Family law

Classification Number: IV.1.j.iii.C

Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination -- Change in financial circumstances -- Change in means of spouse



FAM.IV.1.l.vi Subject Title: Family law

Classification Number: IV.1.l.vi

Support -- Spousal support under Divorce Act and provincial statutes -- Enforcement of award -- Practice and procedure









FAM.IV.1.m.i Subject Title: Family law

Classification Number: IV.1.m.i

Support -- Spousal support under Divorce Act and provincial statutes -- Practice and procedure -- General principles

Wife sought spousal support in family law file -- Validity of two wills and powers of attorney executed by husband was subject of second court file -- Husband did not have capacity and counsel was appointed for husband -- There was animosity and distrust between parties -- Parties were to have benefit of complete and full disclosure of all relevant documents pertaining to medical condition of husband and moneys received and managed on husband's behalf -- Order was made for production of specified documents -- It was reasonable for wife to disclose information that might be relevant in both proceedings -- Full disclosure was to be made between parties and full accounting was to be made with respect to funds received on behalf of husband and managed on behalf of husband from specified date onward.

Wilding v. Wilding (2012), 2012 ONSC 3330, 2012 CarswellOnt 7074, E. Gareau J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.m.ii Subject Title: Family law

Classification Number: IV.1.m.ii

Support -- Spousal support under Divorce Act and provincial statutes -- Practice and procedure -- Jurisdiction of courts

Parties married in 2009 in Ontario, lived apart until 2010 with mother in Ontario and father in Texas, and lived together for several months in 2010 in Texas -- Mother returned to Ontario and gave birth to parties' child -- Father commenced matrimonial proceeding in Texas in 2011 -- Mother commenced proceeding in Ontario -- Texas court declined to assume jurisdiction on all matters related to child, but accepted jurisdiction over all other aspects of parties' divorce -- Texas order made final divorce order, and provided that no spousal support was payable -- Motion was held determining whether or not court had jurisdiction to deal with issues of spousal support and net family property -- It was determined that court had no jurisdiction to deal with issue of spousal support or net family property -- Mother attorned to jurisdiction of Texas court -- Mother never appealed Texas court's jurisdiction order.

Younis v. Bar (2012), 2012 CarswellOnt 3570, 2012 ONSC 1945, Hourigan J. (Ont. S.C.J.); additional reasons at (2012), 2012 CarswellOnt 7151, Hourigan J. (Ont. S.C.J.) [Ontario]








FAM.IV.2.a.iii Subject Title: Family law

Classification Number: IV.2.a.iii

Support -- Child support -- Duty to contribute -- Age of child

Parties had three children and separated after 11 years of marriage -- In March 2008, order was made fixing father's child support obligations (2008 order) -- On October 16, 2009, parties' oldest child, M, turned 18 -- Father brought motion to vary 2008 order -- Motion granted in part -- Father's obligation to pay child support for M was terminated effective October 31, 2009 -- M ceased to be entitled to child support effective on his eighteenth birthday, which constituted change in circumstances -- While M remained under parental charge, it was not proven that he was unable to withdraw from parental charge since his eighteenth birthday -- There was no evidence that M was unable to support himself since October 2009 due to demands of his educational program -- Mother tendered no evidence about whether M was in school when he turned 18 and she did not provide specifics of adult education program in which he was currently enrolled -- It was not proven that M was unable to withdraw from parental charge due to his issues with depression and anxiety -- While medical evidence confirmed that M's anxiety had impacted his ability to become self-sufficient, no specifics were provided.

Szitas v. Szitas (2012), 2012 CarswellOnt 3501, 2012 ONSC 1548, [2012] O.J. No. 1261, D.L. Chappel J. (Ont. S.C.J.) [Ontario]

FAM.IV.2.b.ii Subject Title: Family law

Classification Number: IV.2.b.ii

Support -- Child support -- Practice and procedure -- Jurisdiction of courts

Parties lived together when child was born in 2003 but separated shortly thereafter -- Parties agreed in minutes of settlement to grant sole custody to mother, who would be moving to France -- Father was ordered to pay child support in Ontario pursuant to Federal Child Support Guidelines, as per parties' agreement in minutes of settlement -- Mother moved to France; father moved to Massachusetts -- Seven years later, father successfully brought application in France for reduction of his Ontario-ordered child support obligations -- Father unsuccessfully brought motion in Ontario for declaration that France was proper forum for determination of child support, and for orders staying Ontario proceedings and terminating Ontario support orders -- Father appealed -- Appeal dismissed -- Ontario and France both had jurisdiction -- There was no reason to interfere with motion judge's conclusion that Ontario was most appropriate forum for determination of father's child support obligations -- Parties' agreement in minutes of settlement was considered as being very important -- Location of parties and witnesses did not favour France, as mother was moving to Quebec -- Little weight was given to principle of comity, given that father created conflict by bringing proceedings in France from which only he stood to benefit.

de Somer v. Martin (2012), 2012 CarswellOnt 9804, 2012 ONCA 535, E.E. Gillese J.A., Gloria Epstein J.A., K. Feldman J.A. (Ont. C.A.) [Ontario]







FAM.IV.2.e.ii.E Subject Title: Family law

Classification Number: IV.2.e.ii.E

Support -- Child support -- Variation or termination of order -- Change in circumstances -- Return to school

Respondent was ordered to pay child and spousal support and percentage of medical and s. 7 expenses in temporary order granted in June 2010 -- Respondent brought motion seeking to vary child and spousal support -- Applicant brought motion for order striking respondent's pleadings for arrears of support and failure to pay previous costs award -- Respondent's motion was granted in part -- Older son had completed his college program and was no longer entitled to child support -- Respondent was ordered to pay child support for younger son in amount of $526 per month.

Phillips v. Phillips (2012), 2012 ONSC 2999, 2012 CarswellOnt 6534, Fitzpatrick J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.b.i Subject Title: Family law

Classification Number: IV.3.b.i

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- General principles

Motion by mother for interim child support -- Parties cohabited between 1987 and 1997, and had two children -- Parties entered into separation agreement providing that father pay child support, including event that child went on to post secondary education -- Child was over 18 years of age, and currently attending community college -- Motion granted -- Father was ordered to pay child support of $689.61 for months of July and August 2011, and for months of May to August 2012, and for months of May to August in each year thereafter -- Father was further ordered to pay extraordinary expenses in amount of $1,003.39 per month -- Throughout school year, mother was required to maintain home for child.

Beasley v. Martyn (2012), 2012 ONCJ 412, 2012 CarswellOnt 8489, Brophy J. (Ont. C.J.) [Ontario]

FAM.IV.3.b.i Subject Title: Family law







Classification Number: IV.3.b.i

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- General principles

This was to determine child support -- Parties were never married -- They began living together in June 2004 -- First child was born in August 2004 -- Parties had turbulent relationship -- Parties separated in March 2009 after police were called to home -- Father was charged with three counts of assault and one count of assault causing bodily harm -- He denied all allegations but plead guilty to one count of assault -- Child remained in mother's custody -- Father was under bail restrictions to have no contact with mother but second child was conceived -- Father denied paternity -- DNA testing proved he was father -- Father's parents had been actively involved in children's lives -- Mother relied on grandparents to provide children with things she could not give them -- They also were able to transport children after father sold mother's vehicle -- Father was in relationship with mother's ex-best friend -- Mother claimed that relationship began while parties were still together, which father denied -- Parties home had gone into foreclosure and sale resulted in deficit -- Father declared bankruptcy -- Mother experienced housing problems -- She had lived with sister and grandparents -- She now rented house -- Mother maintained that father had serious anger problems throughout relationship -- She outlined several incidents were father assaulted her -- Father denied having anger problems or every physically assaulting mother -- Mother also claimed that father had unresolved problem with marijuana use -- Father denied having drug problem -- Father's access with children was ordered to be supervised by his parents -- Father maintained that mother did not have enough interest in children and that she abandoned them to paternal grandparents -- Application granted -- Father's income was determined to be $54,300 per year -- Father had not been forthright in disclosing financial information -- Father owed child support of $6,053 -- Although grandparents had children much of time, mother had custody of children and had to maintain housing and related expenses for them -- Father was not entitled to reduction of child support -- Father was ordered to pay ongoing child support of $807 per month.


FAM.IV.3.b.iii Subject Title: Family law

Classification Number: IV.3.b.iii

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Whether use of child support tables appropriate

Parties were married 27 years and had three children -- One adult child resided with wife and one adult child resided with husband -- Neither adult child was under disability -- Third child resided with wife -- Wife brought motion for child and spousal support -- Husband brought motion for preservation order, payment of sale proceeds, to amend answer, to issue certificate of pending litigation, and for table child support for parties' child, aged 26 -- Court was not prepared to order either party amount requested for table child support -- There was little evidence in proceeding to determine if adult children continued to be children of marriage -- There was insufficient evidentiary basis to determine whether table support or different amount was appropriate -- Father was to pay child support for third child in amount of $1,129 based on father's income of $132,000 -- There was prima facie case for spousal support -- Income of $12,000 per year was imputed to wife -- Husband was to pay spousal support of $2,600 per month -- Payment resulted in 51% net disposable income lying with applicant and 49% with respondent -- $23,400 was to be paid to wife from sale proceeds in satisfaction of spousal support for 2011 -- Husband's claim for preservation order was dismissed -- Husband did not have prima facie entitlement to equalization payment -- If husband did, there was no





likely prospect applicant would dissipate assets in manner that would prevent husband from realizing on claim -- Husband's best claim for equalization cold be satisfied from available proceeds of sale of former matrimonial home now held in trust.


FAM.IV.3.b.iii Subject Title: Family law

Classification Number: IV.3.b.iii

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Whether use of child support tables appropriate

Parties married in 1983, had three children, and separated in 2009 -- Middle child resided with father, and other two children resided with mother -- Mother brought motion for child support for youngest child as well as oldest child who was attending university -- Motion granted in part -- Retroactive order was left to trial judge and was not to be decided on interim motion -- Mother argued that oldest child had learning disability and could not carry full course load at university, however he had full course load for 2011-2012 academic year and was two credits from graduating -- Oldest child was able to contribute to his own expenses as he worked part-time and through summer -- However, oldest child was still child of marriage and could not completely withdraw from parents' charge, therefore parents had obligation to support him -- Support for oldest child was ordered in amount of $350 per month -- Father's income varied depending on bonuses and other income received -- Father's income was fixed at $300,000 for purposes of interim support -- Father was ordered to pay $2,364 per month for support of youngest child pursuant to Federal Child Support Guidelines, in addition to amount ordered for oldest child -- Guideline amount for two children was inappropriate due to oldest child's ability to contribute to his own support.


FAM.IV.3.b.iv.A Subject Title: Family law

Classification Number: IV.3.b.iv.A

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Spouses' means -- General principles

Appellant father was required to pay child support to respondent mother for two daughters -- Father appealed from order -- Appeal allowed in part -- There was no error in imputing income to father as he allowed friend to live rent-free in his home -- Quantum of imputed income was proper and judge properly took judicial notice of local rental rates -- Child support was properly calculated and was not disturbed.







Terracol v. Terracol (2012), 2012 CarswellOnt 6051, 2012 ONSC 2801, J. Wilson J., Lafrance-Cardinal J., Swinton J. (Ont. Div. Ct.); reversing in part (2010), 2010 ONSC 6442, 2010 CarswellOnt 8959, [2010] O.J. No. 5134, R. Smith J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.b.iv.B Subject Title: Family law

Classification Number: IV.3.b.iv.B

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Spouses' means -- Spouse deliberately underemployed



FAM.IV.3.b.vii.A Subject Title: Family law

Classification Number: IV.3.b.vii.A

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Extraordinary expenses -- General principles

Expenses ordered to be shared equally in accordance with arrangement negotiated by parties.









FAM.IV.3.b.viii Subject Title: Family law

Classification Number: IV.3.b.viii

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Expenses for post-secondary education

Husband paid child support of $254 per month based on annual income of $28,500 -- One child went to live with father -- Husband sought child support -- Child turned 18 years old and attended three consecutive years of post-secondary education -- Wife claimed retroactive amount -- Husband was entitled to child support -- Wife was to contribute to all three years of post-secondary education -- No ongoing support was claimed or payable -- Wife was entitled to credit of $3,000 -- Husband's income was $42,00 per year and wife's was $34,000 -- Mother was to pay child support of $4,000 in monthly instalments of $400.

Aperocho v. Tolentino (2012), 2012 ONSC 3044, 2012 CarswellOnt 6320, J.A. Ramsay J. (Ont. S.C.J.) [Ontario]















Motion by mother for order requiring father to contribute to child's educational expenses -- Parties commenced cohabitation in 1984, had one child and separated in 1992 -- In 2009, father was ordered to pay child support of $434 per month based on annual income of $53,792.54 -- Child, currently aged 20, had been out of school for period of time -- In 2012, child commenced post-secondary studies at college in California -- Mother was incurring expenses totalling $16,098 for tuition, living expenses and school supplies -- Mother was in receipt of disability benefits, and her annual income was $8,218 -- Motion granted -- Father was ordered to contribute $6,384 per year for period of three years -- Child had not withdrawn from parental control.

Morin v. Leclerc (2012), 2012 CarswellOnt 4590, 2012 ONSC 2320, Paul F. Lalonde J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.c.iii.A Subject Title: Family law

Classification Number: IV.3.c.iii.A

Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income -- Deliberately unemployed or under-employed

In March 2008, order was issued requiring father to pay child support based on income of $127,206.10 (2008 order) -- Father underwent heart surgery in February 2009 and lost his job as sales manager in September 2009 -- Father began acting as sales agent for PGR and B Inc., from which he earned no income in 2010 and 2011 once business expenses were deducted -- Father brought motion to vary 2008 order -- Motion granted in part -- No income was imputed to father for years 2009 or 2010 based on underemployment -- Father proved that return to high-stress sales position he previously held would be detrimental to his health and that he made reasonable job search efforts until end of 2009 -- It was reasonable for father to devote effort to sales agent opportunities with B Inc. and PGR in 2010, despite fact that this effort did not result in significant remuneration -- Income of $65,000 per year was imputed to father commencing April 1, 2011 based on underemployment -- Given his lack of success, it was unreasonable for father to persist with work for PGR after second half of 2010 and to persist with work for B Inc. after fall of 2010 -- If father had begun spending more time on job search in July 2010, and intensified this search in fall of 2010, he could have likely obtained employment with annual salary of $65,000 by April 1, 2011 -- Amount of $65,000 took into account that father was unable to function in high-stress job, but also took into account his training, experience and good reputation in sales.







FAM.IV.3.c.iii.A Subject Title: Family law

Classification Number: IV.3.c.iii.A

Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income -- Deliberately unemployed or under-employed

Appellant father was required to pay child support to respondent mother for two daughters -- Father appealed from order -- Appeal allowed in part -- Error by motions judge was found in imputation of income for period where father took leave to be with infant daughter from another relationship -- Arrangement was reasonable and was planned before it was known mother would seek child support, so there was no intention to avoid obligations -- Father acted properly within long-term income averaging that was available to him -- Child support was recalculated based on reduction in income -- Given divided success on appeal, no costs were awarded for motion -- It was suggested that there should be no costs of appeal, but parties were allowed to make submissions on this point.


FAM.IV.3.c.iii.J Subject Title: Family law

Classification Number: IV.3.c.iii.J

Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income -- Financial disclosure

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- Evidence with respect to father's income from 2005 to 2011 was unsatisfactory -- Application judge arrived at income figure for father based on information parties provided, primarily being mother's reconstruction of father's gross income -- Payor such as father, who did not disclose income information as required, ran risk that income would be attributed to him --









Application judge's decision was entitled to deference.

Crosbie v. Crosbie (2012), 2012 ONCA 516, 2012 CarswellOnt 9333, Gloria Epstein J.A., Janet Simmons J.A., Russell Juriansz J.A. (Ont. C.A.) [Ontario]

FAM.IV.3.c.iii.L Subject Title: Family law

Classification Number: IV.3.c.iii.L

Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income -- Miscellaneous



FAM.IV.3.g Subject Title: Family law

Classification Number: IV.3.g

Support -- Child support under federal and provincial guidelines -- Lump sum award

Parties were married 18 years and had one child -- Husband occupied matrimonial home alone since separation -- Wife continued to pay mortgage, management fee and taxes on home -- Wife claimed husband let property get run down -- Husband did not work for last 13 years and hardly contributed to family unit -- Husband






had education to be gainfully employed -- Husband did not answer disclosure orders of husband's financial information -- Child was in university -- Husband sold property in another country and invested profit in stock market -- Husband had $15,000 cash locked in bedroom in matrimonial home -- Wife's income was $58,000 -- Wife sought possession of matrimonial home to have it sold -- Wife sought unequal share of net family property to be made in wife's favour -- Wife sought order to child support and s. 7 expenses to be made as lump sum from sale of home -- Court assumed net family properties were equal and no equalization payment was owed by either party to other -- Husband had assets not disclosed to wife that were equal to or greater than wife's assets -- Husband was under employed based on husband's qualifications -- Husband contributed nothing to support of child -- It was appropriate case for lump sum support -- Child's past s. 7 expenses of $15,000 and $45,200 for future expenses for child support and education were to be deduction from husband's proceeds of sale of matrimonial home -- Matrimonial home was to be vested in wife's name alone so it could be listed for sale -- Writ of possession issued.


FAM.IV.3.h.iii Subject Title: Family law

Classification Number: IV.3.h.iii

Support -- Child support under federal and provincial guidelines -- Retroactive award -- Blameworthy conduct of payor parent

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- Retroactive increases in child support should be limited to three years except where there was finding of disreputable conduct by payor spouse -- Such conduct was implicit in finding that father threatened mother to try to prevent her from reopening issue of child support -- No basis for interference was seen.


FAM.IV.3.h.xi Subject Title: Family law

Classification Number: IV.3.h.xi






Support -- Child support under federal and provincial guidelines -- Retroactive award -- Miscellaneous

Appellant father was required to pay child support to respondent mother for two daughters -- Father appealed from order -- Appeal allowed in part -- Error by motions judge was found in imputation of income for period where father took leave to be with infant daughter from another relationship -- Arrangement was reasonable and was planned before it was known mother would seek child support, so there was no intention to avoid obligations -- Father acted properly within long-term income averaging that was available to him -- Child support was recalculated based on reduction in income.


FAM.IV.3.i.i Subject Title: Family law

Classification Number: IV.3.i.i

Support -- Child support under federal and provincial guidelines -- Enforcement of award -- General principles

Appellant was offered opportunity to speak to duty counsel and declined -- Endorsement was accurate with respect to duty counsel -- Transcript revealed judge was not practising law from bench -- Judge did not abandon courtroom but took brief recess following appellant not answering judge's questions and reconvened five minutes later -- Matter was not dismissed by judge taking brief recess -- Appellant did not make out any cogent evidence to support allegation of bias or apprehension of bias -- String presumption of judicial impartiality was not rebutted -- Judge was not acting under colour of law or in absence of law -- Appellant created false construct to avoid paying child support -- Argument that appellant would be in violation of legal obligation to secured creditor if appellant were to meet financial demands of final default order was unsupportable -- Assertion that director or court was in breach of copyright law throughout default hearing was without merit -- Director's claim was against appellant support payor and not against literary work copyrighted by appellant -- Incarceration term attached to final default order would not create perpetual state of incarceration and did not constitute cruel and unusual punishment.

Hajdu v. Ontario (Director, Family Responsibility Office) (2012), 2012 CarswellOnt 4678, 2012 ONSC 1835, Coats J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.i.i Subject Title: Family law

Classification Number: IV.3.i.i








Support -- Child support under federal and provincial guidelines -- Enforcement of award -- General principles



FAM.IV.3.i.ii.A Subject Title: Family law

Classification Number: IV.3.i.ii.A

Support -- Child support under federal and provincial guidelines -- Enforcement of award -- Limitation or reduction of arrears -- Jurisdiction

Application by father for extension of 2011 court order refraining director from suspending his driver's licence -- Director believed father owed $178,280 arrears; father claimed he had actually overpaid support -- Matter had been heard by court but decision had not yet been released -- Mother argued court lacked jurisdiction to make order because, pursuant to s. 35(19)(d) and s. 35(12)(b) of Family Responsibility and Support Arrears Enforcement Act (Ont.), father should have applied for extension of refraining in November 2011 -- Application allowed -- Superior court had inherent jurisdiction to stop injustice -- Release of judgment on arrears imminent and may be determinative -- Director to refrain from directing any suspension of father's licence until 30 days after release of reasons for judgment.

Rogers v. Ontario (Director of Family Responsibility Office) (2012), 2012 CarswellOnt 6288, James W. Sloan J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.i.ii.I Subject Title: Family law

Classification Number: IV.3.i.ii.I






Support -- Child support under federal and provincial guidelines -- Enforcement of award -- Limitation or reduction of arrears -- Multiple factors considered

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- In considering father's request that arrears be rescinded, application judge found that father earned income in Jamaica, that his efforts to seek change were delayed, that paying arrears would not cause him to suffer undue hardship and that child was in need of support -- Application judge's conclusion not to rescind arrears involved application of recommended analysis to those facts -- There was no reason to interfere.


FAM.IV.3.j.iii.A Subject Title: Family law

Classification Number: IV.3.j.iii.A

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Change in circumstances -- Change in means

Parties had two children -- Both children were attending university -- Children resided primarily with applicant -- Parties entered separation agreement -- Parties attended arbitration in 2006 -- Arbitrator made award requiring respondent to pay $1,000 per month in child support payable during ten months of school years with addition $100 per month for extraordinary expenses for ten-month period -- Respondent's income was $66,790 in 2006 -- Respondent took early retirement in 2007 and new income from pension was $46,000 per year -- In 2010, one child began residing with respondent -- Respondent began working for employer as casual employee -- Applicant sought to vary arbitration award -- Applicant sought retroactive child support, ongoing child support and contributions to post-secondary expenses -- It was respondent's conduct that resulted in applicant's failure to seek financial disclosure and then variation in child support at earlier date -- Retroactive support order would not be financial hardship for respondent -- Respondent's conduct in deliberately misleading applicant about respondent's income amounted to blameworthy conduct -- It was appropriate case to award child support retroactively -- Retroactive child support was limited to amount payable under Guidelines for two children based on respondent's gross income for 2007 to 2010 less amount respondent paid for regular child support -- No award was made for retroactive child support for extraordinary expenses before May 2010 because applicant made no effort to seek variation in child support when child commenced post-secondary education -- Parties were to contribute to post-secondary expenses of children in proportion to their respective incomes from time when one child went to reside with father.

Benoit v. Roberts (2012), 2012 ONSC 2641, 2012 CarswellOnt 5543, B.R. Warkentin J. (Ont. S.C.J.) [Ontario]







FAM.IV.3.j.iii.A Subject Title: Family law

Classification Number: IV.3.j.iii.A

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Change in circumstances -- Change in means

Parties married in 1996, had two children, and separated in 2006 -- Consent order based on parties' separation agreement required father to pay child support of $225 per month based on father's annual income of $55,000 -- Father claimed that his annual income had decreased to $23,000 in 2010 -- Father was self-employed broker of record for real estate company once owned by his father -- Father brought motion for order varying child support -- Motion dismissed -- Father failed to discharge onus placed upon him to provide proof of accuracy of his reported net income and expenses that were used to reduce his income -- There was strong suspicion or likelihood that with so many related individuals involved in real estate business that potential for income-splitting or income allocation agreements was very high, and required proof that such did not exist in artificially reducing father's income.

Squirrell v. Squirrell (2012), 2012 ONCJ 284, 2012 CarswellOnt 5810, L.J. Klein J. (Ont. C.J.); additional reasons at (2012), 2012 ONCJ 370, 2012 CarswellOnt 7533, L.J. Klein J. (Ont. C.J.) [Ontario]

FAM.IV.3.j.v Subject Title: Family law

Classification Number: IV.3.j.v

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Delay

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- While payee's delay was valid consideration, it was mitigated by fact that during period of non-payment, father was in Jamaica and mother was in Canada.










FAM.IV.3.j.v Subject Title: Family law

Classification Number: IV.3.j.v

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Delay

Retroactive reduction of child support refused based on delay and payor's unilateral termination of support.


FAM.IV.3.j.viii Subject Title: Family law

Classification Number: IV.3.j.viii

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Appeal or review

Parties had two children -- Both children were attending university -- Children resided primarily with applicant -- Parties entered separation agreement -- Parties attended arbitration in 2006 -- Arbitrator made award requiring respondent to pay $1,000 per month in child support payable during ten months of school years with addition $100 per month for extraordinary expenses for ten-month period -- Respondent's income was $66,790 in 2006 -- Respondent took early retirement in 2007 and new income from pension was $46,000 per year -- In 2010, one child began residing with respondent -- Respondent began working for employer as casual employee -- Applicant sought to vary arbitration award -- Applicant sought retroactive child support, ongoing child support and contributions to post-secondary expenses -- It was respondent's conduct that resulted in applicant's failure to seek financial disclosure and then variation in child support at earlier date -- Retroactive support order would not be financial hardship for respondent -- Respondent's conduct in deliberately misleading applicant about respondent's income amounted to blameworthy conduct -- It was appropriate case to award child support retroactively -- Retroactive child support was limited to amount payable under Guidelines for two children based on respondent's gross income for 2007 to 2010 less amount respondent paid for regular child support -- No award was made for retroactive child support for extraordinary expenses before May 2010 because applicant made no effort to seek variation in child support when child commenced post-secondary education -- Parties were to contribute to post-secondary expenses of children in proportion to their respective incomes from time when one child went to reside with father.

Benoit v. Roberts (2012), 2012 ONSC 2641, 2012 CarswellOnt 5543, B.R. Warkentin J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.j.ix








Classification Number: IV.3.j.ix

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Miscellaneous

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- Dismissal of father's application to change child support obligations was based on conclusion that father had not established that change in child support was warranted -- Conclusion was available to application judge on record and no reason was seen to interfere.


FAM.IV.3.k.i Subject Title: Family law

Classification Number: IV.3.k.i

Support -- Child support under federal and provincial guidelines -- Practice and procedure -- General principles

Post-judgment interest -- Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- Application judge erred in failing to view dramatic decline in interest rates since 1995, combined with extensive passage of time during which arrears had accumulated, as amounting to exceptional and compelling circumstances warranting change in rate of post-judgment interest -- Allowing arrears to continue to attract interest rate of 10 per cent would be unfair to father and provide excessive return to mother but might also be perceived as incentive for party in mother's position to delay enforcement -- Amount of interest on arrears established by application judge was set aside and replaced with amount calculated on basis of average rate of post-judgment interest between date of 1995 order and order under appeal.











Appellant was offered opportunity to speak to duty counsel and declined -- Endorsement was accurate with respect to duty counsel -- Transcript revealed judge was not practising law from bench -- Judge did not abandon courtroom but took brief recess following appellant not answering judge's questions and reconvened five minutes later -- Matter was not dismissed by judge taking brief recess -- Appellant did not make out any cogent evidence to support allegation of bias or apprehension of bias -- String presumption of judicial impartiality was not rebutted -- Judge was not acting under colour of law or in absence of law -- Appellant created false construct to avoid paying child support -- Argument that appellant would be in violation of legal obligation to secured creditor if appellant were to meet financial demands of final default order was unsupportable -- Assertion that director or court was in breach of copyright law throughout default hearing was without merit -- Director's claim was against appellant support payor and not against literary work copyrighted by appellant -- Incarceration term attached to final default order would not create perpetual state of incarceration and did not constitute cruel and unusual punishment.

Hajdu v. Ontario (Director, Family Responsibility Office) (2012), 2012 CarswellOnt 4678, 2012 ONSC 1835, Coats J. (Ont. S.C.J.) [Ontario]




Father commenced application to terminate child support -- Father's counsel currently held amount of $11,328.11 representing disputed entitlement to extraordinary expenses -- Motion was held determining whether or not funds may be held in trust by husband's counsel pending outcome of application -- It was determined that funds be held in trust pending outcome of application -- Father's position was reasonable and fair -- There was no prejudice to mother, and prejudice to father if he succeeded and could not recover any overpayment -- If successful on application, father may have overpaid in excess of $100,000.

Jordan v. Stewart (2012), 2012 ONSC 3098, 2012 CarswellOnt 6542, Czutrin J. (Ont. S.C.J.) [Ontario]









Mother commenced motion to change seeking variation of consent order by increasing amount of child support -- Parties had case conference which resulted in various disclosure orders -- Almost four months later, settlement conference was held and application was set down for trial on oral evidence -- Just over week after settlement conference, mother served request for information pursuant to R. 20(3) of Family Law Rules, which was wrong procedure -- Mother retained counsel -- At assignment court, it was noted that motion was going forward and that it would also include motion to amend -- Mother brought motion to amend her pleadings, for questioning of father before trial and for further disclosure -- Motion dismissed -- Requests in notice of motion for productions and questioning were forms of discovery and therefore procedural matters -- There was no substantial or unexpected change of circumstances being alleged regarding them other than that mother retained counsel and no motion was brought when or shortly after that occurred -- It was eve of trial and father had indicated that he was ready for trial -- In weighing whether refusal to grant leave would be unjust court had to consider all factors including ensuring that procedure was also fair to father -- Request to amend pleadings was substantive request -- Conferences and disclosure to date had not addressed new claim -- Amendment would be like new application necessitating procedural steps that could take as long again to work through as process thus far before parties got to trial.

Robertson v. Quinn (2012), 2012 CarswellOnt 11530, 2012 ONSC 5252, Timothy Minnema J. (Ont. S.C.J.); additional reasons at (2012), 2012 CarswellOnt 12678, 2012 ONSC 5797, J. Mackinnon J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.k.ii Subject Title: Family law

Classification Number: IV.3.k.ii

Support -- Child support under federal and provincial guidelines -- Practice and procedure -- Jurisdiction of courts

Parties were involved in relationship -- Mother became pregnant and had child -- Father was ordered to pay child support -- Father appealed -- Appeal dismissed -- Trial judge was satisfied that paternity had been established -- Trial judge acted within his jurisdiction in ordering child support -- Father's submission that trial judge should have stayed proceedings in family court and referred matter to court of criminal jurisdiction to determine if some form of criminal fraud or criminal entrapment had occurred was without merit.

Girard v. Buhendwa (2012), 2012 CarswellOnt 7417, 2012 ONSC 3452, J.S. Fregeau J. (Ont. S.C.J.); affirming (2011), 2011 CarswellOnt 15884, M.L. Bode J. (Ont. C.J.) [Ontario]










FAM.IV.3.k.iii Subject Title: Family law

Classification Number: IV.3.k.iii

Support -- Child support under federal and provincial guidelines -- Practice and procedure -- Disclosure of financial information

Motion to introduce fresh evidence -- Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Father brought motion to introduce fresh evidence -- Motion dismissed -- Proposed fresh evidence satisfied none of requirements of established test -- Father gave no explanation for his failure to produce income documentation he had at time of hearing -- Given nature of father's business, it was not persuasive that proposed evidence would have affected result.


FAM.IV.3.k.iii Subject Title: Family law

Classification Number: IV.3.k.iii

Support -- Child support under federal and provincial guidelines -- Practice and procedure -- Disclosure of financial information

Motion by mother for order striking out father's pleadings and to dismiss his claims based on failure by father to comply with consent disclosure order and disclosure requirements of s. 21 of Child Support Guidelines -- Father was self-employed locksmith who receives income in cash -- Order dismissing father's claims and order that father shall not bring motion to change without leave of court and until all costs paid in full -- Mother may proceed with claims unopposed and without notice to father -- Failure to make disclosure frustrates court's ability to determine or impute correct income to father for child support purposes -- Father had ten months in which to produce disclosure and had six months from date of consent order to comply -- Unjust to allow father to continue with claims.

Savion v. Savion (2012), 2012 ONSC 307, 2012 CarswellOnt 6282, Carole Curtis J. (Ont. C.J.) [Ontario]







FAM.V.2.a.ii Subject Title: Family law

Classification Number: V.2.a.ii

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- Practice and procedure

Parties were married and separated -- Parties entered into separation agreement in which both parties waived claims for spousal support -- Wife commenced claim for spousal support -- Husband brought motion for summary judgment, under R. 16 of Family Law Rules, dismissing wife's claim -- Motion dismissed -- It was seriously doubtful that wife could establish that her current circumstances represented significant departure from range of reasonable outcomes anticipated by parties in manner that put them at odds with objectives of s. 15.2 of Divorce Act -- However, it could not be said that there was no genuine issue requiring trial.

Sochin v. Tabatchnik (2012), 2012 CarswellOnt 10691, 2012 ONSC 4973, Timothy D. Ray J. (Ont. S.C.J.); additional reasons at (2012), 2012 CarswellOnt 12065, 2012 ONSC 5503, Timothy Ray J. (Ont. S.C.J.) [Ontario]

FAM.V.7.b Subject Title: Family law

Classification Number: V.7.b

Domestic contracts and settlements -- Enforcement -- Jurisdiction of courts

Parties were involved in common-law relationship from September 2007 to August 2009 -- Parties had one child, U, born November 1, 2008 -- In August 2011, parties entered into mediation/arbitration agreement -- In August 2012, arbitration award was released determining school that U would attend for 2012/2013 school year -- Father brought motion to set aside or vacate award, among other relief -- Motion dismissed -- Intervention of Ontario Court of Justice ("OCJ") was limited to its statutory jurisdiction under ss. 6 and 7 of Arbitration Act, 1991 -- OCJ could not substitute its own decision for award of arbitrator -- Parties reached agreement that best interests of U would be determined through mediation/arbitration process -- Agreement was bargained in good faith -- Even if OCJ could substitute its decision for that of arbitrator, there was no basis to interfere with award.

McAlister v. Gallant (2012), 2012 CarswellOnt 11108, 2012 ONCJ 565, S.B. Sherr J. (Ont. C.J.); additional reasons at (2012), 2012 CarswellOnt 12679, 2012 ONCJ 622, S.B. Sherr [In Chambers] (Ont. C.J.) [Ontario]











FAM.IX.1.a Subject Title: Family law

Classification Number: IX.1.a

Custody and access -- Jurisdiction of courts -- General principles

Mother sought custody of child, child support and restraining order against father -- Father claimed joint custody with primary residence with father -- Father sought to transfer case to Pembroke -- Mother, father and child resided in Pembroke area -- Mother took child on visit to Peel Region and did not return -- Mother claimed father was abusive -- Child lived in Peel Region for three months -- Child predominantly resided in Petawawa region for most of child's young life -- Mother should have brought application in Pembroke -- Court would not reward mother's deceitfulness to father by permitting mother's case to proceed in this region -- Order went to transfer case to Pembroke.

Benson v. Forsyth (2012), 2012 ONCJ 304, 2012 CarswellOnt 6368, P.W. Dunn J. (Ont. C.J.) [Ontario]




Under order children were permitted to reside with mother in Michigan -- Father was entitled to access under order which could be exercised in Ontario -- Parties brought motion to change terms of order -- Children were habitually resident in Michigan -- Court could not exercise jurisdiction to make or change order for custody that had not been made out -- None of four ways contemplated by Children's Law Reform Act (Ont.), court in Ontario could exercise jurisdiction to make order for custody applied.

Deneau v. Scott (2012), 2012 ONCJ 348, 2012 CarswellOnt 7102, Barry Tobin J. (Ont. C.J.) [Ontario]










Parties were romantically involved until November 2011 -- Parties had one child, born on January 14, 2012 -- Parties resided in Ontario during course of their relationship, and mother moved to California in November 2011 -- Child had never been physically present in Ontario -- Father commenced application in Ontario, pursuant to Children's Law Reform Act, for temporary and permanent shared custody and equal decision-making -- Father brought motion for order that Ontario had jurisdiction over application -- Motion granted -- It was declared that Ontario Superior Court of Justice had jurisdiction in matter -- There was no basis to refrain from exercising jurisdiction either under s. 19(b) or s. 25 of Act -- Parties had real and substantial connection with Ontario -- Proceedings were commenced in California only after application was filed and served in Ontario -- Until mother changed her mind, parties had intention that child would be parented in Ontario.

Dovigi v. Razi (2012), [2012] O.J. No. 897, 2012 ONSC 1199, 2012 CarswellOnt 3181, Kiteley J. (Ont. S.C.J.) [Ontario]




Parties had one child -- Child lived with mother since parties separated with father's implied consent and acquiescence -- Father refused to return child from New York to mother's primary care and child's habitual residence in Ontario -- Mother brought motion for interim sole custody and access to father -- Interim order issued -- Declaration was made that child's habitual residence was Ontario and that Ontario Superior Court of Justice had jurisdiction with respect to custody and access dispute -- Interim order was made granting mother sole custody -- Child was to reside with mother in Ontario -- Child was to be returned to mother forthwith -- Father was to have access to child in accordance with schedule set out -- Father was prohibited from removing child from Ontario without mother's consent or court order.

Sangha v. Meighan (2012), 2012 CarswellOnt 4673, 2012 ONSC 2362, Fragomeni J. (Ont. S.C.J.) [Ontario]

FAM.IX.2.a.i Subject Title: Family law

Classification Number: IX.2.a.i

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Welfare of child

Motion by mother for summary judgment for order for sole custody of younger child -- Parties were married, had two children, and separated -- Older child, currently aged 15, was making her own decisions about where she lived and how much time she spent with each parent -- On motion for temporary custody, it was ordered that child reside with both parents on alternate week basis -- At time current motion was heard, younger child had been living principally with mother for nearly one year, and older child had been residing with father --







Motion granted -- Mother was granted sole custody of younger child, and father was granted sole custody of older child -- Only reasonable result possible was that older child continue to reside with her father, and that mother have sole custody of younger child -- Father was residing in motel room, took no responsibility for ongoing hostility between parties, and had been able to assist older child to deal with her intense loyalty conflict -- Father presented no plan for younger child's instrumental or emotional care.

Pedersen v. Pedersen (2012), 2012 ONCJ 301, 2012 CarswellOnt 6268, J.A. Maresca J. (Ont. C.J.) [Ontario]

FAM.IX.2.a.i Subject Title: Family law

Classification Number: IX.2.a.i

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Welfare of child

This was to determine custody -- Parties were never married -- They began living together in June 2004 -- First child was born in August 2004 -- Parties had turbulent relationship -- Parties separated in March 2009 after police were called to home -- Father was charged with three counts of assault and one count of assault causing bodily harm -- He denied all allegations but plead guilty to one count of assault -- Child remained in mother's custody -- Father was under bail restrictions to have no contact with mother but second child was conceived -- Father denied paternity -- DNA testing proved he was father -- Father's parents had been actively involved in children's lives -- Mother relied on grandparents to provide children with things she could not give them -- They also were able to transport children after father sold mother's vehicle -- Father was in relationship with mother's ex-best friend -- Mother claimed that relationship began while parties were still together, which father denied -- Parties home had gone into foreclosure and sale resulted in deficit -- Father declared bankruptcy -- Mother experienced housing problems -- She had lived with sister and grandparents -- She now rented house -- Mother maintained that father had serious anger problems throughout relationship -- She outlined several incidents were father assaulted her -- Father denied having anger problems or every physically assaulting mother -- Mother also claimed that father had unresolved problem with marijuana use -- Father denied having drug problem -- Father's access with children was ordered to be supervised by his parents -- Father maintained that mother did not have enough interest in children and that she abandoned them to paternal grandparents -- Application granted -- Mother was straightforward and reliable witness -- Father and his witnesses were not reliable -- Children were happy and well-cared for -- Relationship between parties was turbulent, primarily due to father's ongoing difficulties with anger management -- Mother's descriptions of father's physically and verbally aggressive behaviour was accepted -- Father's refusal to acknowledge problems with anger and domestic violence were troubling -- Father had pattern of acting maliciously toward mother -- Father's parents had been actively involved in children's lives but it was not reflection of disinterest by mother -- Children spent lots of time with paternal grandparents but not majority of time -- Children had spent much more time with mother than with father -- Mother had entirely adequate parenting skills -- Mother had significantly more involvement and experience in raising children -- Continued custody with mother was only available option and best promoted consistency and minimized disruption in children's lives -- Mother's plan was realistic and viable -- Father used marijuana but he did not have drug problem that impacted on children -- Proposal for unsupervised access would not expose children to harm -- Ongoing supervised access was doing more harm than good -- It was in children's best interests for mother to have custody with unsupervised access to father -- It was in children's best interests for them to have continued significant contact with paternal grandparents.








FAM.IX.2.a.iv Subject Title: Family law

Classification Number: IX.2.a.iv

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Parenting skills

Application by father for custody of child, aged one -- Child apprehended under Child and Family Services Act (Ont.), and placed in foster home after suffering unexplained injuries of serious nature in October 2010 -- Court with consent of mother and with society's approval subsequently placed child in father's care under six-month supervision order -- Placement with father successful -- Order granting sole custody to father with access by mother in discretion of father and society as to frequency, duration, place and supervision -- Father had demonstrated that he could very adequately care for child -- Assessment signalled serious inadequacies in mother's parenting ability -- Mother missed significant number of access visits.

Butcher v. Warkus (2012), 2012 ONCJ 341, 2012 CarswellOnt 7058, P.W. Dunn J. (Ont. C.J.) [Ontario]

FAM.IX.2.a.iv Subject Title: Family law

Classification Number: IX.2.a.iv

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Parenting skills







FAM.IX.2.a.viii Subject Title: Family law

Classification Number: IX.2.a.viii

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Multiple factors considered

Parties had three-year common law relationship and had one child -- Child resided with mother since separation -- Father had limited contact with child from 2006 to 2009 -- Parties were unable to communicate about anything that involved child -- Father had long history of involvement with criminal justice system -- Father was convicted of three counts of fraud and was awaiting sentencing -- Father was appealing convictions -- Father faced additional fraud-related charges -- Mother sought order for final sole custody of child -- Mother sought summary judgment -- Father sought expanded access pending trial -- Mother's motion was allowed -- Mother was granted sole custody -- Factual disputes between parties were not material to issue of joint custody and none raised genuine issue for trial -- Child was in mother's sole care and custody since 2006 -- Mother was able to meet child's needs and showed herself to be caring and competent parent -- Father did not provide evidence to dispute facts that would support conclusion that there was genuine issue for trial on issue of joint custody was necessary -- Father's motion was dismissed -- There were no exceptional circumstances to change temporary order pending trial.

Garrick v. Saporowski (2012), 2012 ONCJ 265, 2012 CarswellOnt 5372, R. Zisman J. (Ont. C.J.) [Ontario]

FAM.IX.2.a.viii Subject Title: Family law

Classification Number: IX.2.a.viii

Custody and access -- Factors to be considered in custody award -- Best interests of child generally -- Multiple factors considered

Ruling regarding custody -- Parties lived together for period of just over three years and had one child together -- Parties lived with mother's five children from previous relationship and father's three children from previous relationship -- Child, currently aged four -- Both parties sought for child to remain in his and her primary care, respectively -- It was ordered that child remain in care of her mother for balance of school year, and thereafter be in care of her mother every second weekend -- It was in child's best interests that she be placed in care of her father -- It was reasonable to infer that child shared somewhat closer bond with her mother -- Child had been in primary care of her mother since parties' separation over two years ago -- Child was more closely bonded to mother's children, given that their ages were closer and they had shared bedroom for significant period of time -- However, emotional stability of mother's home was concern -- Father and






his daughters represented stable and permanent family unit -- Mother's anger towards father would likely prevent her from making decisions which were in child's best interests -- Father demonstrate willingness to work with service providers -- Father demonstrating commitment to put interests of child ahead of his own -- Father was likely to ensure that child maintain positive relationship with her mother.

Hawkins v. Schlosser (2012), 2012 CarswellOnt 5665, 2012 ONSC 2707, Robbie D. Gordon J. (Ont. S.C.J.) [Ontario]

FAM.IX.2.c Subject Title: Family law

Classification Number: IX.2.c

Custody and access -- Factors to be considered in custody award -- Age of child

Mother and father were married in 1983 -- Mother and father had two children, one of whom, M, was cognitively impaired and suffered from diabetes -- Mother stayed at home and provided primary care to children throughout marriage -- Mother and father separated in 2005 after 22 years of marriage -- After mother and father's separation M continued to live in matrimonial home with father; mother had regular access -- In 2007 mother brought motion for spousal support; father responded with claim for custody and elimination of access -- Father refused to allow mother her court ordered access to M and called police when mother attempted to see M at family home -- Mother's telephone calls to M were intercepted and not returned -- Father's motion for custody was dismissed -- No general custody order was made; however, M was to remain living with father at this time -- Mother was given weekly access -- Mother and father were directed to speak well of each other and not criticize each other, directly or indirectly -- Father had done serious wrong to M in that he used his position of trust to separate M from her mother mentally and physically -- Father engaged in deliberate, systematic, and successful campaign to alienate M from her mother -- Notwithstanding father's conduct, goal was M's best interests, not punishment of father -- As M was adult, order had to also respect her autonomy consistent with her cognitive abilities and her potential for further growth, while protecting her and providing suitable living arrangements for her -- Strong and active relationship with both parents was in M's best interest.


FAM.IX.3.c.vi Subject Title: Family law

Classification Number: IX.3.c.vi

Custody and access -- Interim custody -- Factors considered -- Miscellaneous

Parties had one child -- Child lived with mother since parties separated with father's implied consent and acquiescence -- Father refused to return child from New York to mother's primary care and child's habitual residence in Ontario -- Mother brought motion for interim sole custody and access to father --







Interim order issued -- Declaration was made that child's habitual residence was Ontario and that Ontario Superior Court of Justice had jurisdiction with respect to custody and access dispute -- Interim order was made granting mother sole custody -- Child was to reside with mother in Ontario -- Child was to be returned to mother forthwith -- Father was to have access to child in accordance with schedule set out -- Father was prohibited from removing child from Ontario without mother's consent or court order.




Custody and access -- Terms of custody order -- Removal of child from jurisdiction





Custody and access -- Terms of custody order -- Removal of child from jurisdiction











FAM.IX.5.a.iii Subject Title: Family law

Classification Number: IX.5.a.iii

Custody and access -- Variation of custody order -- Factors to be considered -- Material change in circumstances

Parties married in January 2005 and separated in August 2008 -- Parties had two children, C, born March 17, 2005, and K, born December 4, 2006 -- In February 2009, parties were awarded joint custody -- Children's primary residence was with mother -- In April 2012, father brought successful motion to change and was awarded sole custody of children -- Mother appealed -- Appeal allowed -- Trial judge made his decision based on consideration of best interests of children, without regard to February 2009 custody order -- Trial judge had found as fact that there had been no material change in circumstances since making of that order.

Henderson v. Henderson (2012), 2012 ONSC 5054, 2012 CarswellOnt 11408, T.A. Heeney R.S.J. (Ont. S.C.J.); reversing (2012), 2012 CarswellOnt 12571, M.P. O'Dea J. (Ont. C.J.) [Ontario]

FAM.IX.5.a.iv.C Subject Title: Family law

Classification Number: IX.5.a.iv.C

Custody and access -- Variation of custody order -- Factors to be considered -- Conduct of parent -- Removal from jurisdiction



FAM.IX.5.a.xvi









Classification Number: IX.5.a.xvi

Custody and access -- Variation of custody order -- Factors to be considered -- Miscellaneous

Mother had sole custody and father access -- Father sought order for shared parenting on weekly basis -- Father paid child support -- Child wanted access to remain as it was -- Children's lawyer recommended mother retain sole custody and set out access for father -- There was no reason to disturb access plan in place -- Motion was dismissed.

Bolt v. Shirley (2012), 2012 ONCJ 220, 2012 CarswellOnt 4859, P.W. Dunn J. (Ont. C.J.) [Ontario]

FAM.IX.6.c.iv Subject Title: Family law

Classification Number: IX.6.c.iv

Custody and access -- Joint custody -- Factors to be considered -- Status quo

Claims for custody of child, aged six -- Child's primary residence since separation was with mother -- Father exercised access regularly including every other weekend and Wednesday nights overnight -- Recommendation of Children's Lawyer was that mother and father had joint custody with primary residence of child being with mother -- Order that primary residence of child to be with mother -- Order that child have access to father every second weekend, Wednesday overnights, on weekend child is with mother, child will stay with father following Tuesday, and on weekend child is with father, child will stay with him on following Thursday -- Mother and father have demonstrated ability to co-operate and joint custody appropriate -- Current parenting and access arrangements did form status quo whatever their origin -- Court troubled by mother's attitude and apparent unwillingness to facilitate access -- Father impulsive and demonstrates poor dispute resolution skills -- Father's inclination to public yelling matches problematic -- Father had not yet developed personal skills and attitudes necessary to manage a week about arrangement -- Access dates to be increased.

Walters v. Walters (2012), 2012 CarswellOnt 4685, 2012 ONSC 1845, P.D. Lauwers J. (Ont. S.C.J.) [Ontario]

FAM.IX.8.a.iii Subject Title: Family law

Classification Number: IX.8.a.iii

Custody and access -- Access -- Factors to be considered -- Wishes of child






Parties married in 1983, had three children, and separated in 2009 -- Middle child resided with father, and other two children resided with mother -- Since separation, father's access to youngest child had been sporadic and intermittent -- Father blamed mother for lack of access, but mother argued that she had not impeded access and had left it to child to arrange -- Father brought motion for access to youngest child -- Motion granted in part -- Given age of child, he was permitted to have input concerning access to his father -- Father was to be given email address of child for purposes of arranging access, and could purchase cell phone for child to facilitate communication -- Father was entitled to reasonable access to child, which included alternate weekends and holiday time subject to wishes of child and upon reasonable notice -- Mother was not to interfere with access arrangements.


FAM.IX.8.a.xi Subject Title: Family law

Classification Number: IX.8.a.xi

Custody and access -- Access -- Factors to be considered -- Status quo

Mother had sole custody and father access -- Father sought order for shared parenting on weekly basis -- Father paid child support -- Child wanted access to remain as it was -- Children's lawyer recommended mother retain sole custody and set out access for father -- There was no reason to disturb access plan in place -- Motion was dismissed.

Bolt v. Shirley (2012), 2012 ONCJ 220, 2012 CarswellOnt 4859, P.W. Dunn J. (Ont. C.J.) [Ontario]

FAM.IX.8.d Subject Title: Family law

Classification Number: IX.8.d

Custody and access -- Access -- Terms of order

Respondent brought motion for specified access -- Respondent proved to be committed father -- There was no complaint by applicant about father's ability to care for child in safe and stimulating manner -- Access was set out -- There was temporary order allowing family representatives to do access exchanges when respondent was not available.

Szuky v. Pereira (2012), 2012 ONCJ 302, 2012 CarswellOnt 6338, P.W. Dunn J. (Ont. C.J.) [Ontario]







FAM.IX.8.e.i Subject Title: Family law

Classification Number: IX.8.e.i

Custody and access -- Access -- Variation of order -- General principles

Parties had three-year common law relationship and had one child -- Child resided with mother since separation -- Father had limited contact with child from 2006 to 2009 -- Parties were unable to communicate about anything that involved child -- Father had long history of involvement with criminal justice system -- Father was convicted of three counts of fraud and was awaiting sentencing -- Father was appealing convictions -- Father faced additional fraud-related charges -- Mother sought order for final sole custody of child -- Mother sought summary judgment -- Father sought expanded access pending trial -- Mother's motion was allowed -- Mother was granted sole custody -- Factual disputes between parties were not material to issue of joint custody and none raised genuine issue for trial -- Child was in mother's sole care and custody since 2006 -- Mother was able to meet child's needs and showed herself to be caring and competent parent -- Father did not provide evidence to dispute facts that would support conclusion that there was genuine issue for trial on issue of joint custody was necessary -- Father's motion was dismissed -- There were no exceptional circumstances to change temporary order pending trial.

Garrick v. Saporowski (2012), 2012 ONCJ 265, 2012 CarswellOnt 5372, R. Zisman J. (Ont. C.J.) [Ontario]

FAM.IX.8.g Subject Title: Family law

Classification Number: IX.8.g

Custody and access -- Access -- Supervised access

Parties reached consent that would allow access by applicant to children supervised by paternal grandmother -- Lawyers needed resolution on points for which there was oral argument -- Parties had certain plan with maternal grandmother to supervise and there would not be any access at centre -- Parties agreed to random testing for illicit drugs and alcohol -- There would be no order for access to applicant to cease if testing was positive because there was still protection to children by grandmother during access -- Parenting course for applicant would benefit applicant -- Respondent was not in breach of order for medical disclosure -- Order for applicant to produce medical information about mental health problems and to take treatment presupposed problem at present which remained to be determined -- No order was made requiring letter from doctor about applicant's parenting ability -- Better information could be obtained from grandmother and others who observed applicant with children -- There was no reason for children no to attend applicant's wedding -- Access order was not to be as late as applicant requested -- Order issued for increased access and for applicant's fiance to participate in access.

Pollington v. Rossi (2012), 2012 ONCJ 340, 2012 CarswellOnt 7109, P.W. Dunn J. (Ont. C.J.) [Ontario]







FAM.IX.8.h Subject Title: Family law

Classification Number: IX.8.h

Custody and access -- Access -- Interjurisdictional access



FAM.XV.1.a.vii Subject Title: Family law

Classification Number: XV.1.a.vii

Children in need of protection -- General principles -- Jurisdiction of courts -- Miscellaneous

Father requested to go to Assignment Court to be placed on upcoming trial list -- Society and mother sought order under Rule 33 of Family Law Rules (Ont.), which permitted court to lengthen time set out on timetable -- Society and mother did not serve notice of intention to seek order under Rule 33 -- Father argued court did not have jurisdiction to make order at settlement conference because father was not put on notice -- Father filed settlement conference brief indicating father was willing to resolve matter outside of court -- Court had jurisdiction to make order -- It was not open to party to lull other parties into believing trial would not be necessary and then resile from that position at last minute and complain there was no notice given that society would seek order father led everyone to believe was unnecessary -- It was in best interests of children to lengthen time set out in timetable for hearing -- It could not be in best interests of children to rush to judgment with paucity of necessary evidence.

Jewish Family & Child Services of Greater Toronto v. K. (L.) (2012), 2012 ONCJ 212, 2012 CarswellOnt 4713, Robert J. Spence J. (Ont. C.J.) [Ontario]

FAM.XV.3








Classification Number: XV.3

Children in need of protection -- Application for supervision

Society sought finding child was in need of protection -- Society sought seven-month supervision order with child to continue to reside with mother but subject to terms and conditions -- Mother resided with child's stepfather -- Mother had order for sole custody with supervised access to father -- Mother commenced domestic proceeding to terminate father's access -- Mother was not co-operative with society -- There were reports of inappropriate physical discipline by mother -- There were probable grounds to believe there was protection risk to child of physical and emotional harm -- Mother, father and stepfather were to sign consents to release information between society and collaterals in form presented by society -- Mother, father and stepfather were to maintain contact with society and attend scheduled appointments -- Mother, father and stepfather were to allow scheduled and unscheduled visits with society worker in homes -- Mother and stepfather were to allow society worker to meet privately with child -- Mother and stepfather were to refrain from use of physical discipline on child or threat of using physical discipline on child.

Children's Aid Society of Halton (Region) v. Z. (T.A.) (2012), 2012 CarswellOnt 4880, 2012 ONCJ 231, R. Zisman J. (Ont. C.J.) [Ontario]

FAM.XV.4.b.i Subject Title: Family law

Classification Number: XV.4.b.i

Children in need of protection -- Application for temporary custody -- Temporary order for medical purposes -- General principles

Society sought to change custody and access pending trial or resolution of matter -- Two older children had different biological father from younger child -- Father of youngest child was mother's most recent partner -- Youngest child suffered second suspicious injury -- Doctor indicated injuries were not accidental -- Injuries occurred while child was in care of mother and father -- Children presented with multiple medical issues inadequately addressed by parents -- Biological father and paternal grandmother of two older children refused to abide by order to permit access in home and to get rid of animals in home -- Drug paraphernalia and marijuana residue were found in home -- All three children were at risk of harm in care of parents and risk could not be adequately addressed by terms of supervision order -- Two older children were placed in temporary care and custody of society with access at discretion of society -- Youngest child was to continue to be in kinship placement with paternal grandparents.

Children's Aid Society of Simcoe County v. Y. (J.L.) (2012), 2012 CarswellOnt 5039, 2012 ONSC 2468, L.M. Olah J. (Ont. S.C.J.) [Ontario]

FAM.XV.4.e






Classification Number: XV.4.e

Children in need of protection -- Application for temporary custody -- Miscellaneous

Motion by mother for order placing children, aged three and five, in her temporary care and custody -- With respect to younger child, final order was issued placing her in care of her father, pursuant to supervision order, for period of six months -- Older child was placed with his mother under six-month supervision order and his father was noted in default -- Older child was subsequently apprehended and placed in foster care -- Society sought Crown wardship in relation to older child -- Society supported status quo in younger child's case -- Motion dismissed -- There was sufficient credible evidence to support determination that older child should not be returned to temporary care of his mother pending trial -- Mother's lifestyle choices created likely risk for older child -- Evidence indicated that child had been spending time with his father when contact was prohibited -- Mother was frequently absent from her home -- Younger child's best interests did not require that she be moved to her mother's care for next few months pending trial.

Children's Aid Society of the United Counties of Stormont, Dundas & Glengarry v. C. (C.L.) (2012), 2012 CarswellOnt 5388, 2012 ONSC 2631, Martin James J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.a.i Subject Title: Family law

Classification Number: XV.5.a.i

Children in need of protection -- Application for permanent custody -- Factors to be considered -- Best interests of child

Child was made Crown ward without access to mother -- Decision was made on summary judgment motion -- Neither mother nor mother's counsel were present -- Mother appealed order for no access -- Appeal was allowed -- Judge was required to consider whether relationship between child and mother was beneficial and meaningful to child and whether access would impair child's future opportunities for adoption -- Judge did not mention two factors and did not analyze evidence that might apply to two factors -- Reasons provided no analysis of best interests of child -- Order with respect to access was ambiguous -- There was strong suggestion access issue was genuine issue for trial -- Failure to ensure motion and/or mother's counsel had opportunity to make further submissions before access order was varied was error of law.

Children's Aid Society of Niagara Region v. B. (M.) (2012), 2012 ONSC 2569, 2012 CarswellOnt 5056, J.R. Henderson J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.a.i









Motion by society for summary judgment placing children in care and custody of society as wards of Crown -- Father was at home caring for older child while mother was in hospital to give birth to younger child -- Older child woke up, went outside and was found by neighbour while father slept -- Society apprehended children -- Older child, currently aged five -- Older child had been in custody of society for last 581 days -- Younger child, currently aged two -- Youngest child had been in custody of society for last 512 days -- Mother consented to motion -- Father sought custody of children under supervision of society -- Motion granted -- There was no genuine issue requiring trial -- Father's own evidence established that best interests, protection and well-being of these children was not with him -- Father's personal issues prevented him being capable of caring for and supporting himself, let alone care of children -- It was too late to allow father further time for personal development and treatment.

Children's Aid Society of Ottawa v. D. (C.) (2012), 2012 ONSC 2176, 2012 CarswellOnt 4728, Paul Kane J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.a.i Subject Title: Family law



Mother had five children, two in care of maternal grandmother, two in care of Alberta Child Protective Services and youngest child J was apprehended at birth in April 2010 by Children's Aid Society -- In August 2011 J was found in need of protection, on consent of mother and grandmother, pursuant to s. 37(2)(b) of Child and Family Services Act -- Grandmother cared for various grandchildren in grandmother's home over 13-year period and currently cared for three grandchildren, two with significant problems, and grandmother did not have legal custody of any grandchild -- Grandmother had lengthy history of involvement with child protection agencies including Society, in relation to grandmother's own children as well as grandchildren and detailed records existed -- Grandmother moved 14 times between 1998 and April 2011 and family constellation in grandmother's home was constantly changing -- Parenting capacity assessment of grandmother in 2012 noted grandmother's adequate care of three grandchildren, emphasized that family was high risk with multiple risk factors and concluded that placing J with grandmother expanded risk for J and other grandchildren -- Society sought Crown wardship of J with no access and grandmother proposed plan to place J in grandmother's care -- Society applied for Crown wardship without access -- Application granted -- Risk of placing J with grandmother was too high, and J's best interests required certainty and finality of disposition which were met only by Crown wardship with no access -- Given multiple-risk circumstances, adding J to grandmother's caregiving responsibilities had likely result of spreading grandmother's already limited skills too thin and destabilizing somewhat precarious situation -- Grandmother had no meaningful relationship with J and failed to satisfy onus to rebut presumption under s. 59(2) of Act that access would impede J's prospects for adoption.





Children's Aid Society of Toronto v. C. (N.) (2012), 2012 ONCJ 309, 2012 CarswellOnt 6315, Carole Curtis J. (Ont. C.J.) [Ontario]

FAM.XV.5.a.ii.D Subject Title: Family law

Classification Number: XV.5.a.ii.D

Children in need of protection -- Application for permanent custody -- Factors to be considered -- Particular factors -- Physical or mental illness of parent

Motion by society for summary judgment on application for Crown wardship with access -- Child was found to be in need of protection -- Child was taken care of by her mother until age of ten, at which point mother gave child's care over to society temporarily because of child's behaviour and mother's own health issues -- When mother refused second extension, society apprehended child -- Mother wanted child to come home to her, without supervision -- Child, currently aged twelve, had very high needs -- Child was diagnosed with developmental disability, visual impairment, mild autism and possible tic disorder or Tourette syndrome -- Mother had cognitive impairment, and brain tumor that gave rise to physical consequences -- Motion granted -- There was no genuine issue requiring trial -- Conclusion was inevitable that mother could not take care of child herself -- No sufficient placement short of permanent foster care appeared to be available on evidence, including placement with her mother with supervision by society -- Child has meaningful relationship with her mother and her maternal family, and access was appropriate.

Children's Aid Society of Niagara Region v. U. (M.) (2012), 2012 CarswellOnt 5725, 2012 ONSC 2797, J.A. Ramsay J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.a.ii.E Subject Title: Family law

Classification Number: XV.5.a.ii.E

Children in need of protection -- Application for permanent custody -- Factors to be considered -- Particular factors -- Child abuse

Application by society for order that child be made ward of Crown and placed in care of society with no access to mother -- Society became involved with mother when child was three years of age, and mother was discovered passed out on street while child was with her -- Child was apprehended in 2005 when society found child with bruising on his face while in care of his mother who was intoxicated with alcohol and cocaine -- Child, currently aged nine -- Child was returned to his mother's care in 2007, and subsequently re-apprehended in August 2011, when child was discovered with blood on his face at his mother's apartment in which elderly man was discovered covered in blood and woman was half-naked -- Application granted -- Child was in need of protection from his mother -- Mother was unpredictable, violent and not trustworthy --






Relationship between mother and child would not be beneficial and meaningful.

Children's Aid Society of Hamilton v. S. (S.) (2012), 2012 CarswellOnt 8606, 2012 ONSC 3956, Cavarzan J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.a.ii.H Subject Title: Family law

Classification Number: XV.5.a.ii.H

Children in need of protection -- Application for permanent custody -- Factors to be considered -- Particular factors -- Miscellaneous

Applicant society sought Crown wardship of four children -- P.P. was 11-year-old boy -- Father died -- I.T. was five-year-old girl -- I.T.'s father was M.B. -- C.B. was two-year-old boy and S.B. was one-year-old girl -- R.B. was father of C.B. and S.B. -- There were concerns about domestic violence between mother and R.B. -- They had financial difficulties -- There was concern about state of home -- There were concerns about medical care -- There were concerns about R.B. being aggressive and angry -- I.T. was found by child protection worker unattended in park when she was three years old -- I.T. expressed concern that R.B. was violent -- House smelled of urine -- Society apprehended P.P., I.T. and C.B. from mother and R.B. -- P.P. and I.T. were placed with grandparents M.C. and D.C. -- M.C. was mother's father and D.C. was mother's stepmother -- C.B. was placed in separate foster home -- S.B. was apprehended at birth and was placed in same foster home as C.B. -- M.C. and D.C. were long-time foster parents with society -- P.P. had behavioural issues -- P.P. did not want to live with mother and R.T. -- There were concerns that M.B. had anger issues -- M.B. had pleaded guilty to domestic violence against former partner -- There were concerns about M.B.'s drug use -- M.B. had not been co-operative with society -- M.B. had exercised access to I.T. and it had gone well -- There was fresh evidence that M.B. had been on methadone to treat opiate dependency -- There were concerns that parents had unresolved mental health issues -- R.B. had been diagnosed with panic attacks, ADHD and anger issues -- He started taking medication and behaviour had been less volatile -- R.B.'s former wife provided evidence that he had physically abused her -- Society was concerned that mother and R.B. did not have skills require to care for children on long-term basis -- They did not show insight into how R.B.'s volatile behaviour could impact children -- Mother and R.B. wanted all four children returned to their care -- M.B. wanted I.T. placed in his care -- Application granted -- When M.B. appeared as witness he was agitated, frustrated, hostile, loud and aggressive -- He seemed to lack awareness of how aggressive he presented himself -- M.B. was not candid with court -- He concealed drug use -- Mother was blind to impact that dysfunctional and unhealthy relationship with R.B. had on children -- Children were in need of protection -- Mother and R.B. had history of failed relationship in which children were exposed to physical violence, adult conflict, psychological abuse, chaotic behaviour and instability -- They lived lives of chaos, which was mostly caused by R.B.'s impulsive, irrational and explosive outbursts -- R.B. was not able to control emotional and aggressive responses -- R.B.'s aggressive behaviour was responsible for two significant injuries mother sustained, dog bite and broken elbow -- At times mother recognized that R.B. was seriously troubled but most of time she lived in denial -- Mother had lied to court, society, police and others primarily to protect R.B. -- Mother failed to protect P.P. from R.B. and M.B. -- P.P. and I.T. both experienced neglect and exposure to inappropriate adult conflict -- Mother and R.B. had unstable relationship -- They both suffered from serious psychological problems and had not received meaningful treatment for mental health issues -- Problems were not under control -- Behaviour had improved but success was modest -- It was unrealistic to expect that R.B. would be able to modify behaviour or suppress volatile urges if children were present -- Mother and R.B. both had deficient parenting skills -- M.B. had excellent relationship with I.T. but he hadn't consistently been in her life -- M.B. had quick temper and was aggressive -- He was bully -- He denied misconduct -- M.B. needed help that he refused to get -- M.B. had not demonstrated that he could engage in real life interactions on full-time basis without engaging in aggressive behaviour -- M.B. had





lengthy criminal record -- He had significant history of substance abuse and had not been forthright about drug use -- M.B. was unemployed -- He had been unco-operative with society -- M.C. and D.C. had been successful foster parents for years -- They had been actively and beneficially involved in lives of P.P. and I.T. and they had good relationship with them -- They had shown commitment and sensitivity in dealing with P.P. and I.T.'s situations -- P.P. witnessed lots of yelling and fighting and was concerned about safety when in home of mother and R.B. -- There had problems with access following apprehension -- P.P. wanted to live with M.C. and D.C. and wanted nothing to do with mother or R.B. -- It was in P.P.'s best interests and was essential to his emotional well-being that wishes were respected -- P.P. was safe, physically and emotionally -- Crown wardship for P.P. was only appropriate option -- Access to mother and R.B. would not be beneficial and meaningful -- I.T. loved M.B. and enjoyed time with him -- She also loved M.C. and D.C. and was very happy with them -- I.T. loved P.P. and their time together was important -- M.B. had been more of access parent -- There would be significant risk if I.T. were placed in M.B.'s care on full-time basis -- Best, most realistic and least disruptive option was Crown wardship with expectation that I.T. would remain with M.C. and D.C. and they would adopt her -- Access between I.T. and M.B. would be beneficial and meaningful but society had to maintain meaningful supervision of access -- Access between I.T. and mother and R.B. would not be beneficial and meaningful for I.T. -- C.B. and S.B. were very young and interaction with parents had been limited -- There was no strong parent-child bond -- Parents had no ability to care for children -- C.B. and S.B. were made Crown wards for purpose of adoption -- Parents had not established that continued access would be beneficial and meaningful -- C.B. and S.B. were young and required permanence adoption could provide -- Parents had not established that access order would not negatively impact children's future opportunities for adoption.

Catholic Children's Aid Society of Hamilton v. T. (J.) (2012), 2012 CarswellOnt 8986, 2012 ONSC 3893, Pazaratz J. (Ont. S.C.J.) [Ontario]




Status review application by Children's Aid Society ("CAS") for Crown wardship of three children with access for purpose of adoption -- CAS first became involved with mother in 2000 after first child was born -- Mother had been overheard yelling at child in hospital but no apparent protection concerns were seen during home visit -- Three years later, CAS had attended twice due to first child having been seen outside of home unattended -- No action was taken at those times -- Mother had second child around that time and third child some years later -- In 2006, mother was charged with assaulting first child -- Children were apprehended, found to be in need of protection, and temporarily placed with maternal grandmother -- Charge was ultimately withdrawn for unspecified reasons -- When children were returned to mother, she was subjected to successive supervision orders -- Ongoing concerns were mother's inability to manage her stressors, lack of supervision of children, use of physical discipline, and lack of co-operation with professionals -- Mother claimed she had right to slap children -- Mother admitted smoking marijuana as often as she could afford it -- Mother often required vouchers to buy food for children -- In September 2010, CAS was granted temporary custody of children due to mother's total lack of co-operation -- Mother was often late for access visits and missed several -- Application granted -- Mother had proven time and again that she was incapable of fulfilling physical, mental, and emotional needs of children -- It was painfully obvious that mother had serious problems managing anger -- Mother's habit of yelling and screaming could not be characterized as Jamaican trait -- This habit was troubling personality flaw specific to mother -- Mother's inability to manage finances had




brought significant misery to children through constant moves to different homes and temporary shelters -- Mother appeared steadfast in her belief that children were completely normal and did not require any medication -- It was abundantly clear that medication had helped first and second children's school performance and bedwetting -- It was also abundantly clear that all three children were thriving as result of being provided with structured environment by foster parents -- In mother's care, children had often gone hungry and complained about hunger to CAS workers and police -- Mother had history of thumbing her nose at conditions to which she had voluntarily agreed -- Mother fundamentally believed she did not require any help from professionals or CAS -- Fact that mother had not pursued any programs in year and half since children had been in care indicated she had no sincere commitment to taking programs -- Returning children to mother would have resulted in all prior problems inevitably being experienced again -- It was highly unlikely that mother would ever change.

Children's Aid Society of Ottawa v. C. (C.) (2012), 2012 CarswellOnt 6372, 2012 ONSC 2804, Colin McKinnon J. (Ont. S.C.J.) [Ontario]




Society sought Crown wardship for purposes of adoption of children -- Father was noted in default -- Mother filed plan of care but did not attend for trial -- Only plan that had merit was to place children for adoption -- Mother did not exercise access to older child for almost one year -- Older child was already found to be child in need of protection -- Child was in need of protection in that mother failed to adequately care for or supervise and protect child from physical harm -- Child was in need of protection in that child was likely to suffer emotional harm resulting from mother's failure to maintain meaningful contact with child since date of apprehension seven months ago -- Mother's failure to follow through, to work co-operatively with society and failure to attend trial show mother was prepared to abandon child -- Child's physical, mental and emotional needs could only be met by making child Crown ward and placing child for adoption.

Children's Aid Society of Ottawa v. G. (2012), 2012 ONSC 2626, 2012 CarswellOnt 5364, Robert N. Beaudoin J. (Ont. S.C.J.) [Ontario]

FAM.XV.5.b Subject Title: Family law

Classification Number: XV.5.b

Children in need of protection -- Application for permanent custody -- Onus of proof







There was history of domestic conflict between parents -- Parents were separated -- There were periods of time where parents did not exercise access to children -- There were historical patterns of parents failing to plan for children and to commit to caring for children -- Father was charged with aiding and abetting -- Father was pleading not guilty -- Children were in continuous care of society for 24 months -- Society brought motion for summary judgment seeking Crown wardship for purposes of adoption -- Father's plan was for children to be returned to care of father -- Motion was allowed -- There was no genuine issue for trial -- Order issued making children Crown wards without access -- Record established significant concerns regarding parents' ability to maintain commitment required to parent children on long-term basis -- Record revealed major concerns about parents' ability to cope with day-to-day responsibilities and capacity to appropriately prioritize issues in lives -- Parents failed to adduce evidence to support finding that relationship with children was beneficial and meaningful to children.

Children's Aid Society of Toronto v. O. (C.) (2012), 2012 ONCJ 213, 2012 CarswellOnt 4863, Marvin A. Zuker J. (Ont. C.J.) [Ontario]

FAM.XV.7.a Subject Title: Family law

Classification Number: XV.7.a

Children in need of protection -- Practice and procedure in custody hearings -- General principles






Motion by society for summary judgment for order placing child in sole legal custody of her father with supervised access to her mother -- Society's protection concerns included child being exposed to serious






domestic violence, substance use by both parents, mother's poor mental health, and mother's instability -- Upon apprehension from her mother's care, child was found to be child in need of protection and placed in care and custody of her father for five months, subject to supervision of society -- Subsequent order continued temporary order for further four-month period -- Motion granted -- There was no genuine issue requiring trial -- Least intrusive measure that would meet best interest of child was to place her in sole custody of her father -- Society no longer had any concerns about father's parenting capacity -- Father had participated in several programs, and had been active with child's day care -- Father demonstrated willingness and ability to protect child from risks her mother posed -- Child appeared happy in father's care -- Father appeared to be using interventions with child appropriate for her age and stage of development -- Mother had not addressed society's protection concerns in any meaningful way.

Children's Aid Society of Ottawa v. L. (K.) (2012), 2012 CarswellOnt 5721, 2012 ONSC 2720, Aitken J. (Ont. S.C.J.) [Ontario]






FAM.XV.7.b.iii.B Subject Title: Family law

Classification Number: XV.7.b.iii.B

Children in need of protection -- Practice and procedure in custody hearings -- Commencement of proceedings -- Parties -- Grandparents







Child had special needs -- Society sought finding child was in need of protection -- There were reports mother used inappropriate physical discipline on child -- Mother was not co-operative with society -- Society sought seven-month supervision order with child continuing to reside with mother subject to terms and conditions -- Paternal grandmother brought motion to be added as party to proceedings -- Society had no protection concerns about grandmother -- Father was incarcerated and supported grandmother -- Father did not put forward plan of care -- Grandmother claimed mother would not permit access between grandmother and child and sought access -- Child was in care of mother pursuant to temporary without prejudice order -- Decision on temporary care and custody hearing was reserved -- Grandmother was added as party -- It was necessary to add grandmother as party to consider grandmother's claim for access and possibly care and custody of child -- There was no other way for grandmother to put claim effectively and fully before court.

Children's Aid Society of Halton (Region) v. Z. (T.A.) (2012), 2012 ONCJ 230, 2012 CarswellOnt 4898, R. Zisman J. (Ont. C.J.) [Ontario]

FAM.XV.7.b.iii.B Subject Title: Family law

Classification Number: XV.7.b.iii.B

Children in need of protection -- Practice and procedure in custody hearings -- Commencement of proceedings -- Parties -- Grandparents

Maternal grandmother sought to be added as party to child protection proceedings concerning two young children -- Both mother and father opposed maternal grandmother's motion on grounds that relationship between mother and maternal grandmother was so poor that interactions between them actually caused mother's mental health to deteriorate -- Maternal grandmother's motion granted -- It would be in best interests of children to have maternal grandmother added as party -- Maternal grandmother had legal interest in proceeding in that order could issue putting children in her care -- Maternal grandmother's addition as party was necessary, as existing parties did not intend to present her plan to court and without her participation court would be unable to fully consider whether it was possible to place children with relative -- Adding maternal grandmother as party would not unduly delay proceedings.

Children's Aid Society of Peel (Region) v. G. (K.) (2012), 2012 CarswellOnt 5282, 2012 ONCJ 249, M.B. Pawagi J. (Ont. C.J.) [Ontario]

FAM.XV.7.b.v Subject Title: Family law

Classification Number: XV.7.b.v

Children in need of protection -- Practice and procedure in custody hearings -- Commencement of proceedings -- Miscellaneous





Action was resolved by consent order whereby copy of supervision services agreement was filed as part of record and application was withdrawn with any existing order terminated -- Mother sought costs against society -- Motion was dismissed -- Fact society requested application be withdrawn rather than seeking dismissal was not reason to deviate from regime for costs with respect to child protection proceeding that was set out in Rule 24 of Family Law Rules (Ont.) -- There was nothing in material indicating society acted towards mother in inappropriate way -- There was no evidence of undue duress or disrespect -- Approach and position of society were justified before and after apprehension -- Society acted properly, fairly and with due diligence in carrying out investigation, assessing risk and executing various plans.

Children's Aid Society of Brant v. F. (T.) (2012), 2012 ONCJ 410, 2012 CarswellOnt 8504, L.P. Thibideau J. (Ont. C.J.) [Ontario]

FAM.XV.7.e.ii Subject Title: Family law

Classification Number: XV.7.e.ii

Children in need of protection -- Practice and procedure in custody hearings -- Evidence at hearing -- Documentary evidence

Mother had five children, two in care of maternal grandmother, two in care of Alberta Child Protective Services and youngest child J was apprehended at birth in April 2010 by Children's Aid Society -- In August 2011 J was found in need of protection, on consent of mother and grandmother, pursuant to s. 37(2)(b) of Child and Family Services Act -- Grandmother cared for various grandchildren in grandmother's home over 13-year period and currently cared for three grandchildren, two with significant problems, and grandmother did not have legal custody of any grandchild -- Grandmother had lengthy history of involvement with child protection agencies including Society, in relation to grandmother's own children as well as grandchildren and detailed records existed -- Society sought Crown wardship of J with no access and grandmother proposed plan to place J in grandmother's care -- Society applied for Crown wardship with no access -- Voir dire was held at trial to determine admissibility of records -- Determination was made to admit records -- Considering established jurisprudence for determining admissibility of historical documents and wide exception to hearsay rule under s. 50 of Act, exercise of discretion to admit records of grandmother's past parenting was appropriate -- Records met test of necessity as production of direct evidence of each of grandmother's contacts with child protection agencies was more time consuming than warranted -- Mandatory nature of record keeping by child protection agencies was sufficient guarantee of reliability of records -- Grandmother as party to application would have opportunity to respond to evidence in records.

Children's Aid Society of Toronto v. C. (N.) (2012), 2012 ONCJ 309, 2012 CarswellOnt 6315, Carole Curtis J. (Ont. C.J.) [Ontario]

FAM.XV.7.f.i Subject Title: Family law







Classification Number: XV.7.f.i

Children in need of protection -- Practice and procedure in custody hearings -- Conduct of hearing -- General principles

Father requested to go to Assignment Court to be placed on upcoming trial list -- Society and mother sought order under Rule 33 of Family Law Rules (Ont.), which permitted court to lengthen time set out on timetable -- Society and mother did not serve notice of intention to seek order under Rule 33 -- Father argued court did not have jurisdiction to make order at settlement conference because father was not put on notice -- Father filed settlement conference brief indicating father was willing to resolve matter outside of court -- Court had jurisdiction to make order -- It was not open to party to lull other parties into believing trial would not be necessary and then resile from that position at last minute and complain there was no notice given that society would seek order father led everyone to believe was unnecessary -- It was in best interests of children to lengthen time set out in timetable for hearing -- It could not be in best interests of children to rush to judgment with paucity of necessary evidence.

Jewish Family & Child Services of Greater Toronto v. K. (L.) (2012), 2012 ONCJ 212, 2012 CarswellOnt 4713, Robert J. Spence J. (Ont. C.J.) [Ontario]

FAM.XV.7.g.i Subject Title: Family law

Classification Number: XV.7.g.i

Children in need of protection -- Practice and procedure in custody hearings -- Appeal of order -- General principles



FAM.XV.7.g.vii Subject Title: Family law






Classification Number: XV.7.g.vii

Children in need of protection -- Practice and procedure in custody hearings -- Appeal of order -- Evidence on appeal

Parents appealed order that child be ward of Crown with no access -- Child was born in November 2002 -- In March 2007, child was taken from care by parents following diagnosis of possible rickets by pediatrician, later determined to be caused by vitamin D deficiency -- Other health concerns were identified -- Police attended family home to investigate and discovered marijuana grow operation -- Parents were charged with respect to drug operation and with failing to provide child with necessaries of life -- On consent, child was placed in care and custody of maternal aunt and uncle, who wanted to adopt child -- In November 2007, parents abducted child from supervised access visit -- Child was located with parents in April 2008 -- Parents were arrested and incarcerated and had not had access to child -- Litigation was long and protracted and resulted in order that child be made ward of Crown with no access for purpose of adoption -- Appeal dismissed -- Updated notes of caseworker were admitted as fresh evidence, as they were highly relevant, reliable, went to determining best interests of child and could not have been adduced before -- Evidence at trial was that child had not had medical treatment for years and developed serious medical issues -- Trial judge's conclusion that there was failure to seek medical attention, even after manifestations of serious health concerns of child became apparent, was supported by evidence -- There was nothing inappropriate in trial judge asking questions of counsel or parties regarding issue -- Where welfare of child was concerned, trial judge could intervene as much as necessary to clarify facts and ensure appreciation of evidence was correct -- Parents failed to establish bias on part of trial judge -- Trial judge took into account factors set out in s. 37(3) of Child and Family Services Act (Ont.), in determining what was in child's best interests -- Trial judge clearly understood factors set out in Act and there was ample evidence to support findings -- Trial judge did not misapprehend timing of assessment of best interests of child -- Trial judge's analysis was fair and balanced toward parents -- Trial judge did not err in assessment of ongoing need for protection -- Trial judge made no palpable and overriding error Decision at 199 A.C.W.S. (3d) 463 was affirmed.

Children's Aid Society of Toronto v. L. (P.) (2012), 2012 ONSC 2477, 2012 CarswellOnt 7605, Darla A. Wilson J. (Ont. S.C.J.) [Ontario]



Children in need of protection -- Status review hearing -- Access by parents











Society sought to change custody and access pending trial or resolution of matter -- Two older children had different biological father from younger child -- Father of youngest child was mother's most recent partner -- Youngest child suffered second suspicious injury -- Doctor indicated injuries were not accidental -- Injuries occurred while child was in care of mother and father -- Children presented with multiple medical issues inadequately addressed by parents -- Biological father and paternal grandmother of two older children refused to abide by order to permit access in home and to get rid of animals in home -- Drug paraphernalia and marijuana residue were found in home -- All three children were at risk of harm in care of parents and risk could not be adequately addressed by terms of supervision order -- Two older children were placed in temporary care and custody of society with access at discretion of society -- Youngest child was to continue to be in kinship placement with paternal grandparents.

Children's Aid Society of Simcoe County v. Y. (J.L.) (2012), 2012 CarswellOnt 5039, 2012 ONSC 2468, L.M. Olah J. (Ont. S.C.J.) [Ontario]














Status review application by child protection agency for order of Crown wardship without access for purpose of adoption -- Agency had become involved with child around time child was born -- Protection concerns were mother's paranoia and vulnerable mental health, isolation, and lack of community supports -- Mother accepted services from agency on voluntary basis -- Mother was briefly hospitalized on involuntarily basis and subsequently consented to supervision order -- Child was apprehended pursuant to warrant after mother breached supervision order by changing her residence -- Mother consented to temporary custody with access -- Mother was repeatedly found to be lacking in adequate parenting skills and she often missed access visits -- Mother lacked insight into her problems -- Application granted -- There was overwhelming evidence that child continued to be in need of protection -- Mother had paranoid personality disorder, primary feature of which was mistrust -- Mother's condition was pervasive and enduring and affected her life in multiple settings -- Mother's condition was causing significant impairment in occupational and personal functioning -- Mother had isolated and would isolate herself with child if child was in her care -- Mother had exhibited significant impairment in her ability to attend to child's emotional and physical care needs with sensitivity and predictability -- Almost nothing had changed for mother since she consented to temporary custody -- Mother did not have realistic plan of care -- Supervision order would not have been adequate to protect child if he was returned to mother -- Trust between mother and agency was essential element of supervision order but this could not be achieved in this case -- Mother was not suitable candidate for access -- Mother failed to establish that her relationship with child was beneficial and meaningful and that access would not impair child's future opportunities for adoption.

Jewish Family & Child Service of Greater Toronto v. F. (M.) (2012), 2012 ONCJ 308, 2012 CarswellOnt 6305, Carole Curtis J. (Ont. C.J.) [Ontario]

FAM.XX.1.f.i Subject Title: Family law

Classification Number: XX.1.f.i

Costs -- In family law proceedings generally -- Costs of particular proceedings -- Appeals

Appellant father was required to pay child support to respondent mother for two daughters -- Father appealed from order -- Appeal allowed in part -- Error by motions judge was found in imputation of income for period where father took leave to be with infant daughter from another relationship -- Arrangement was reasonable and was planned before it was known mother would seek child support, so there was no intention to avoid obligations -- Father acted properly within long-term income averaging that was available to him --




Child support was recalculated based on reduction in income -- It was suggested that there should be no costs of appeal, but parties were allowed to make submissions on this point.


FAM.XX.1.f.iii Subject Title: Family law

Classification Number: XX.1.f.iii

Costs -- In family law proceedings generally -- Costs of particular proceedings -- Miscellaneous

Parties were same-sex spouses -- Applicant J was awarded $1,125 per month in spousal support as result of motion from respondent H -- J sought costs of motion in amount of $20,615.23 -- H conceded that J was successful on motion but submitted that costs were $5,000 -- Costs submissions were made by both parties -- Costs awarded to J -- Behaviour of J was reasonable, although he did not make offer to settle that attracted costs consequences -- Offers were reasonable and J and his counsel conducted litigation fairly -- J needed to go to court, as H would not offer any spousal support -- However, H had success in preventing J from proceeding on default basis and having offer made without prejudice -- J was entitled to partial indemnity costs for this portion of trial -- For second portion of trial, H was evasive as to his business records and financial information, to level where he was found to be attempting to deceive court -- H's conduct was in bad faith and attracted full recovery costs -- There was some duplication in services provided by J's second counsel and deductions from costs claimed were made accordingly -- However, counsel was required to spend considerable time on file due to actions of H, and J's counsel was successful in revealing true income information -- Rate for counsel was reasonable, as counsel only charged J at legal aid rate -- H was able to pay costs to be awarded, based on his income level -- Costs of appearances fixed at total of $15,000, payable to J as support.

Jones v. Hugo (2012), 2012 CarswellOnt 7690, 2012 ONCJ 381, S.B. Sherr J. (Ont. C.J. [In Chambers]); additional reasons to (2012), 2012 ONCJ 211, 2012 CarswellOnt 4722, S.B. Sherr J. (Ont. C.J.) [Ontario]

FAM.XX.1.f.iii Subject Title: Family law

Classification Number: XX.1.f.iii

Costs -- In family law proceedings generally -- Costs of particular proceedings -- Miscellaneous

Appellant father was required to pay child support to respondent mother for two daughters -- Father appealed from order -- Appeal allowed in part -- Given divided success on appeal, no costs were awarded for motion.










FAM.XX.1.g.ii Subject Title: Family law

Classification Number: XX.1.g.ii

Costs -- In family law proceedings generally -- Factors considered -- Conduct of litigation

Father moved to prevent mother from moving her residence, and was unsuccessful -- Mother sought costs on basis of her success in motion -- Mother claimed that she should receive full indemnity costs based on father's motion being unnecessary -- Father claimed partial success and mother's conduct should lead to no costs -- Costs submissions made -- Costs awarded on partial indemnity basis -- Mother was successful party and was presumed entitled to costs -- No circumstances existed to change presumption -- Although unsuccessful, father's motion was brought reasonably and not in bad faith -- Both parties acted in best interests of children and there was no conduct that would change standard costs award -- Costs awarded to mother on partial indemnity basis.

Cossetti v. Cossetti (2012), 2012 CarswellOnt 10701, 2012 ONSC 4760, Fragomeni J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 8622, 2012 ONSC 3913, Fragomeni J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.g.v.A Subject Title: Family law

Classification Number: XX.1.g.v.A

Costs -- In family law proceedings generally -- Factors considered -- Success -- Divided success

Parties had children and separated -- Mother relocated with children after separation -- Mother obtained emergency, provisional order for custody of children, supervised access and restraining order in May 2012 -- Father brought motion in July 2012 for custody of children and for order forbidding mother to relocate beyond 10 km -- Court order confirmed provisional order for custody and lifted condition of supervision during access -- Issue of harassment was addressed in criminal court -- Mother sought costs of $12,890.48 on substantial indemnity basis -- Hearing was held -- Success was divided -- Costs claimed by mother were excessive -- Father's conduct precipitated need for emergency motion but there was no reason to grant costs on substantial indemnity basis -- Mother awarded costs of $5,000 on partial indemnity basis.

Carbonneau c. Thibodeau (2012), 2012 ONCS 4692, 2012 CarswellOnt 10167, Robert Beaudoin J. (Ont. S.C.J.) [Ontario]













FAM.XX.1.g.v.A Subject Title: Family law

Classification Number: XX.1.g.v.A

Costs -- In family law proceedings generally -- Factors considered -- Success -- Divided success

Parties had child in 1990 and separated in 1993 -- Mother returned to Canada from Jamaica while father remained -- 1995 child support order ordered father to make monthly payments of $300 but father did not make payments until after his return to Canada in late 1999 -- From April 2000 until June 2008, when child turned 18 and left school, father paid $300 monthly -- In 2009, father brought application to retroactively change his child support obligations for period after July 2008 and to fix arrears -- Mother brought cross-application for payment of arrears of $25,489 plus accrued interest of $24,161.78, increased child support from January 2005, payment of expenses under s. 7 of Federal Child Support Guidelines and for tax gross-up on arrears to March 2000 -- Application judge dismissed father's application and granted relief requested by mother -- Father appealed -- Appeal allowed in part -- Father's motion to introduce fresh evidence dismissed -- While success had been divided, mother was for most part successful and was therefore entitled to costs -- Costs were fixed in amount of $3,000 inclusive of disbursements and applicable taxes.


FAM.XX.1.g.vi Subject Title: Family law

Classification Number: XX.1.g.vi

Costs -- In family law proceedings generally -- Factors considered -- Multiple factors considered

Applicant made offer to settle -- It would have been more favourable for respondent to have accepted offer -- Respondent entered consent order and had no intention of complying with order -- Respondent attempted to hide behind corporation of common law spouse in attempt to reduce income and avoid spousal support obligation -- Spousal support arrears accumulated to $53,400 -- There was bad faith on part of respondent -- Applicant's withdrawal of equalization claims and property claims did not negate that applicant was substantially successful on spousal support issue at trial -- Respondent was to pay costs of $20,000 inclusive of taxes within 60 days -- Costs were enforceable as support -- Costs were enforceable against respondent personally and against corporation.

Dutchyn v. Dutchyn (2012), 2012 ONSC 3444, 2012 CarswellOnt 8456, T. Maddalena J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.g.vi








Classification Number: XX.1.g.vi

Costs -- In family law proceedings generally -- Factors considered -- Multiple factors considered

Trial was held determining parties' matrimonial issues -- Wife sought costs on substantial indemnity basis in amount of $72,000 inclusive of disbursements and HST -- Wife was awarded costs on partial indemnity basis fixed in amount of $40,000 -- Wife was completely successful at trial and was entitled to costs -- Issues were extremely important to parties, but were not complex -- Husband persisted to commencement of trial, and through first day mid-trial conference with another judge occupying full day, to insist on wife supporting herself, which was ill-conceived and unreasonable strategy -- Amount sought by wife was excessive -- It was clear that wife sought to use costs to punish husband's behaviour throughout matter.

Metzger v. Metzger (2012), 2012 ONSC 1410, 2012 CarswellOnt 2950, P.J. Flynn J. (Ont. S.C.J.); additional reasons to (2011), 2011 CarswellOnt 9196, 2011 ONSC 4884, Patrick J. Flynn J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.h Subject Title: Family law

Classification Number: XX.1.h

Costs -- In family law proceedings generally -- Scale of costs

Mother was awarded custody of parties' child, father was granted day access, and father was ordered to pay retroactive child support on imputed income -- Mother sought full indemnity costs of $3,508.11 -- Father did not make submissions regarding costs -- Mother was awarded costs fixed in amount of $2,500, inclusive of fees, disbursements and HST, on partial indemnity basis -- Mother should have made offer to settle on parenting issues -- Mother was seeking compensation for legal work performed for prior steps in case where costs were not sought or reserved, which was not recoverable -- Rates submitted by counsel for mother were reasonable -- Father had ability to pay.

Ascento v. Davies (2012), 2012 CarswellOnt 11412, 2012 ONCJ 581, S.B. Sherr J. [In Chambers] (Ont. C.J.); additional reasons to (2012), 2012 CarswellOnt 9224, 2012 ONCJ 491, S.B. Sherr J. (Ont. C.J.) [Ontario]














Mother was successful on two motions -- Mother sought substantial indemnity costs in amount of $20,000 -- Mother was awarded costs in amount of $18,000 on an all inclusive basis -- Fact that father was successful in obtaining order for custody of child was factor in reducing mother's costs -- There was some minor overlap in some services rendered -- Father had disobeyed previous consent order to seek counselling made to address his previous alienating behaviour.

Caparelli v. Caparelli (2012), 2012 CarswellOnt 7853, 2012 ONSC 3532, J. Mackinnon J. (Ont. S.C.J.); additional reasons to (2012), 2012 ONSC 2324, 2012 CarswellOnt 5112, J. Mackinnon J. (Ont. S.C.J.); andadditional reasons to (2012), 2012 ONSC 2938, 2012 CarswellOnt 6248, J. Mackinnon J. (Ont. S.C.J.) [Ontario]




Father's motions for contempt and reimbursement of taxi expenses were dismissed -- Mother's motion to strike father's pleadings was dismissed -- Father was ordered to pay child support -- Mother sought costs in amount of $16,712.50 -- Father was ordered to pay costs fixed in amount of $3,500 on partial indemnity basis -- Mother was not entitled to costs on substantial indemnity basis -- Neither party exchanged offers to settle to trigger substantial indemnity award -- Although father exhibited bad faith, father's conduct was addressed in separate ruling wherein father was ordered to post $25,000 for security for costs before he took any further steps in proceedings -- Costs sought for motions was excessive.

Chatur v. De Los Reyes (2012), [2012] O.J. No. 3991, 2012 ONCJ 580, 2012 CarswellOnt 11409, Sheilagh O'Connell J. (Ont. C.J.); additional reasons to (2012), [2012] O.J. No. 2690, 2012 ONCJ 367, 2012 CarswellOnt 7550, Sheilagh O'Connell J. (Ont. C.J.) [Ontario]




Father moved to prevent mother from moving her residence, and was unsuccessful -- Mother sought costs on basis of her success in motion -- Mother claimed that she should receive full indemnity costs based on father's motion being unnecessary -- Father claimed partial success and mother's conduct should lead to no costs -- Costs submissions made -- Costs awarded on partial indemnity basis -- Court took into account father's ability to pay, given reduced child support payments and additional transportation costs after mother's move -- Costs awarded to mother in amount of $5,000.












Cossetti v. Cossetti (2012), 2012 CarswellOnt 10701, 2012 ONSC 4760, Fragomeni J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 8622, 2012 ONSC 3913, Fragomeni J. (Ont. S.C.J.) [Ontario]




Parties were same-sex spouses -- Applicant J was awarded $1,125 per month in spousal support as result of motion from respondent H -- J sought costs of motion in amount of $20,615.23 -- H conceded that J was successful on motion, but submitted that costs were $5,000 -- Costs submissions were made by both parties -- Costs awarded to J -- Behaviour of J was reasonable, although he did not make offer to settle that attracted costs consequences -- Offers were reasonable and J and his counsel conducted litigation fairly -- J needed to go to court, as H would not offer any spousal support -- However, H had success in preventing J from proceeding on default basis and having offer made without prejudice -- J was entitled to partial indemnity costs for this portion of trial -- For second portion of trial, H was evasive as to his business records and financial information, to level where he was found to be attempting to deceive court -- H's conduct was in bad faith and attracted full recovery costs -- There was some duplication in services provided by J's second counsel and deductions from costs claimed were made accordingly -- However, counsel was required to spend considerable time on file due to actions of H, and J's counsel was successful in revealing true income information -- Rate for counsel was reasonable, as counsel only charged J at legal aid rate -- H was able to pay costs to be awarded, based on his income level -- Costs of appearances fixed at total of $15,000, payable to J as support.

Jones v. Hugo (2012), 2012 CarswellOnt 7690, 2012 ONCJ 381, S.B. Sherr J. (Ont. C.J. [In Chambers]); additional reasons to (2012), 2012 ONCJ 211, 2012 CarswellOnt 4722, S.B. Sherr J. (Ont. C.J.) [Ontario]

FAM.XX.1.k Subject Title: Family law

Classification Number: XX.1.k

Costs -- In family law proceedings generally -- Offer to settle

Temporary order requiring father to pay child support and proportionate share of child's orthodontic expenses was granted, and father's request to reduce child support based on claim of undue hardship was dismissed -- Mother sought costs of motion fixed at $3,000 inclusive of disbursements and HST -- Mother was awarded costs fixed at $2,000, inclusive of fees, disbursements and HST -- Mother made very reasonable offer to settle on December 16, 2011 and maintained that position through hearing of motion -- Father maintained untenable position and needlessly increased cost of case -- Father didn't make reasonable offers to settle -- Bill









of costs was fair and proportionate -- Expenses claimed by mother were reasonable -- Amount sought was reduced as result of father's reasonable position on custody saving court time.

Boehm v. Peters (2012), 2012 ONCJ 173, 2012 CarswellOnt 3946, S.B. Sherr J. (Ont. C.J. [In Chambers]); additional reasons at (2012), 2012 ONCJ 93, 2012 CarswellOnt 2746, S.B. Sherr J. (Ont. C.J.) [Ontario]




Family judgment required that husband pay lump sum support of $75,000 within three months and that wife pay child support in amount of $533 per month from March 1, 2012 to April 1, 2013, and in amount of $266 per month from May 1, 2013, until one year after child had finished college course -- Wife's offer to settle, dated September 29, 2011, provided that husband pay lump sum spousal support of $30,000 or $875 per month for five years and that husband pay all post secondary school expenses of children -- Wife claimed costs including taxes and disbursements in amount of $30,541.65 on partial indemnity scale to September 19, 2001, and $33,648.69 on substantial indemnity scale after September 19, 2001 for total of $64,390.34 -- Wife was awarded costs in amount of $15,000 -- Husband's position on costs was wholly unreasonable -- Wife's bill of costs was excessive -- Effect of costs award of magnitude of award sought exceeded any fair and reasonable expectation of parties.

Grimba v. Bossi (2012), 2012 ONSC 2290, 2012 CarswellOnt 5840, P.B. Hambly J. (Ont. S.C.J.); additional reasons to (2012), 2012 ONSC 1386, 2012 CarswellOnt 2934, P.B. Hambly J. (Ont. S.C.J.) [Ontario]




Where not fully meeting or exceeding result obtained at trial -- In matrimonial proceedings, parties litigated issues of spousal support including arrears and equalization of family property -- Wife served offer to settle -- Result obtained at trial was significantly more favourable to wife than position in offer to settle on support issues, but more favourable to husband on issue of equalization -- Wife was entitled to her partial-indemnity costs -- Wife's offer did not satisfy R. 18(14) of Family Law Rules, as it did not fully meet or exceed result obtained at trial -- However, wife's offer was properly taken into consideration in assessing costs generally, as even partial acceptance would have significantly lessened time and expense of trial and as wife was generally successful -- Wife's costs were fixed at $23,919.15 inclusive and payable forthwith, subject to husband's right of set-off against equalization payment owned by wife.







Nicholson v. Nicholson (2012), 2012 CarswellOnt 12266, 2012 ONSC 5486, S.E. Healey J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 9943, 2012 ONSC 4569, Healey J. (Ont. S.C.J.) [Ontario]




Wife brought successful motion for child support and spousal support -- Husband's motion was successful on issues of severance of divorce from corollary relief claim and access, however he was unsuccessful on motion for order for sale of matrimonial home -- Husband did not accept wife's offer to settle -- Parties made submissions on costs -- Costs awarded to wife -- Wife obtained more monthly spousal support than in her offer, however offer called for interim disbursement of $50,000 which was not granted -- While wife was successful on motion, she did not meet or exceed her offer, and terms of offer were not severable -- Keeping in mind division of success, husband was ordered to pay costs to wife on partial indemnity basis in amount of $6,981.03, inclusive of disbursements and HST.

Strong v. Strong (2012), 2012 ONSC 5202, 2012 CarswellOnt 11354, Thomas A. Bielby J. (Ont. S.C.J.); additional reasons to (2012), 2012 ONSC 4645, 2012 CarswellOnt 9876, Thomas A. Bielby J. (Ont. S.C.J.) [Ontario]




Wife applied for divorce and corollary relief -- Application was granted in part -- Parties made written submissions on costs -- Husband had made written offer to settle -- Offer to settle was significantly more favourable to wife on issues that were tried than was judgment -- Husband was presumptively entitled to costs -- Husband was further entitled to full recovery costs from date of offer provided five conditions in R. 18(14) of Family Law Rules were met and there was no evidence that husband did not meet those conditions -- Parties resolved many issues existing between them over years between separation and trial -- Result was that what could have been lengthy, difficult trial was reduced to three days of evidence and one day of argument -- Issues were not unduly complicated -- Obvious difficulty was to assess very large costs claims in light of what was relatively brief and uncomplicated trial -- Considerable time was claimed for steps taken before judges of this court when costs were either fixed against husband or neither awarded nor reserved -- It was not possible to split out time charged to file that had to do with issues of custody and access that resulted in parenting agreement -- Fair and reasonable award for four day trial, on substantial indemnity basis,











in circumstances would be $265,000 inclusive of disbursements and taxes.

W. (K.) v. W. (S.) (2012), 2012 CarswellOnt 11109, 2012 ONSC 5060, Jennings J. (Ont. S.C.J.); additional reasons to (2012), 2012 ONSC 2874, 2012 CarswellOnt 7146, Jennings J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.m Subject Title: Family law

Classification Number: XX.1.m

Costs -- In family law proceedings generally -- Miscellaneous

Mother's request to strike father's pleadings was denied, and father's cross-motion to have payments paid out of trust funds held in-trust by his lawyer was granted -- Applicant sought full recovery of costs of $47,630 -- Costs were reserved to trial judge -- Although husband was successful in have funds released, order was made so that case would proceed to trial rather than any determination on merits of parties' competing positions.

Aghaei v. Ghods (2012), 2012 CarswellOnt 7706, 2012 ONSC 3594, Czutrin J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 910, 2012 ONSC 564, Czutrin J. (Ont. S.C.J.) [Ontario]

FAM.XX.6 Subject Title: Family law

Classification Number: XX.6

Costs -- Support

Parties were engaged in lengthy and acrimonious matrimonial proceedings -- Husband was ordered to make payments to wife of $10,000 monthly on account of child support, spousal support and arrears of support -- In separate proceedings, parties were ordered to sell matrimonial home, of which husband had previously had exclusive possession -- Husband brought motion for variation down of support, and wife brought motion for order citing husband in contempt of matrimonial home sale order -- Husband's motion dismissed; wife's motion granted -- "[I]t should have been obvious to husband that he would not succeed on this motion" -- There was some duplication between work performed by wife's counsel in respect of husband's present motion and that performed on recent similar motion, and that duplication was properly taken into account in assessing wife's costs -- Wife's partial indemnity costs of motions were fixed at $15,000 inclusive.

Del Mastro v. Del Mastro (2012), 2012 CarswellOnt 3968, 2012 ONSC 2057, Van Melle J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 1597, 2012 ONSC 1032, Van Melle J. (Ont. S.C.J.) [Ontario]
















Costs -- Support

Parties entered into separation agreement in which they both waived claims for spousal support -- Wife applied for spousal support -- Husband's motion for summary judgment dismissing wife's claim was dismissed on basis that it could not be said there was no genuine issue requiring trial under R. 16 of Family Law Rules -- Wife, as successful party, sought costs in amount of $2,500, while husband argued that order should be for no costs -- Husband ordered to pay wife's costs of motion fixed at $2,500 -- Rule 24(1) of Family Law Rules provides that unsuccessful party should ordinarily be ordered to pay costs of successful party -- This rule is particularly important when dealing with summary judgment motions because of anticipated large volume of work involved -- Summary judgment motions must not be undertaken lightly -- There was no reason in this case not to award wife her costs -- Wife's costs in amount of $2,500 inclusive of disbursements and HST were reasonable.

Sochin v. Tabatchnik (2012), 2012 CarswellOnt 12065, 2012 ONSC 5503, Timothy Ray J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 10691, 2012 ONSC 4973, Timothy D. Ray J. (Ont. S.C.J.) [Ontario]



Costs -- Children in need of protection

Society apprehended child -- Action was resolved by consent order whereby copy of supervision services agreement was filed as part of record and application was withdrawn with any existing order terminated -- Mother sought costs against society -- Motion was dismissed -- Fact society requested application be withdrawn rather than seeking dismissal was not reason to deviate from regime for costs with respect to child protection proceeding that was set out in Rule 24 of Family Law Rules (Ont.) -- There was nothing in material indicating society acted towards mother in inappropriate way -- There was no evidence of undue duress or disrespect -- Approach and position of society were justified before and after apprehension -- Society acted properly, fairly and with due diligence in carrying out investigation, assessing risk and executing various plans.

Children's Aid Society of Brant v. F. (T.) (2012), 2012 ONCJ 410, 2012 CarswellOnt 8504, L.P. Thibideau J. (Ont. C.J.) [Ontario]










Documents

The Canadian Abridgment eDigests - Family Law - … · The Canadian Abridgment eDigests - Family Law - Ontario ... wife's name alone so it could be listed for sale ... The Canadian