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The Canadian Abridgment eDigests - Family Law - Ontario

The Canadian Abridgment eDigests -- Family Law - Ontario

2012-45 November 05, 2012

FAM.III.5.m.ii Subject Title: Family law

Classification Number: III.5.m.ii

Division of family property -- Assets which may be excluded from property to be divided -- Debts and liabilities -- Miscellaneous

Husband's father held $110,000 first mortgage on husband's home -- Husband borrowed $38,500 from father in 1999 and provided promissory note -- Father registered $38,500 second mortgage against home -- Husband and wife married in 2001 -- Husband never made payments towards second mortgage -- Husband and wife separated in 2009 -- Husband claimed second mortgage plus interest as $72,000 debt -- Wife brought application for equalization of family property -- Application granted -- Husband was not permitted to claim second mortgage as debt -- Promissory note was never produced -- Husband had never made payment in 13 years and father had never demanded payment -- Wife was not cross-examined on her assertion that husband had said he had no intention of paying second mortgage -- Father was not called to testify so his evidence likely would not have been helpful -- Limitation period for enforcing second mortgage had arguably expired but no reliance was placed on this.

Stetler v. Stetler (2012), 2012 CarswellOnt 9763, 2012 ONSC 4466, P.J. Flynn 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 married in 1980, had one child together, included in family child of wife's former relationship and date of separation was determined at 2000 -- Wife was long-time bank employee earning $76,000 per year and husband held variety of service jobs until 2009 when health issues allegedly precluded continued employment -- Husband transferred interest in family home to wife in 2000 -- Parties' separation agreement under which husband allegedly waived equalization payment was determined invalid -- Each party had retirement savings, wife alleged debts of $14,856 at date of separation and husband alleged debts of $10,000 -- Issue arose whether debts were debts at date of separation -- Husband applied for equalization of net family property -- Application granted -- Wife was ordered to pay $57,797.33 equalization payment to husband -- Wife had no evidence to support personal debt beyond $4,856 at date of separation and husband had no documentation for any amount of debt -- Amount of equalization payment was appropriately based on parties' agreement on most issues with respect to value of net family property together with conclusion regarding amount of debt at date of separation.

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Andrade v. Andrade (2012), 2012 ONSC 2777, 2012 CarswellOnt 6553, 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 lived together for 11 years and were married additional five years -- Parties had one child -- Temporary order provided for joint custody -- Child resided with father on weekends and with mother during week -- At time of separation both parties had businesses -- Mother sought sole custody with access to father -- Parties had high conflict relationship -- Mother wished to move child to different community -- Child was currently in French immersion -- Mother's plan involved moving child to English only school -- Property and businesses were valued -- It was in child's best interests for mother to have sole custody with liberal access to father -- It was clear French immersion was not appropriate for child -- Father put own interests ahead of those of child -- Father's new relationship had not yet proved stable -- Mother would continue to encourage strong relationship between father and child -- Hostility between parents indicated parents were not suitable candidates for joint parenting -- Mother was able to move with child to new community -- It was not in child's best interests to remain in French immersion until end of school year -- Move was to take place at suitable break in academic year -- Access was set out -- Father was granted exclusive possession of matrimonial home -- Father was to pay equalization payment of $43,245 within 30 days.

Lynn v. Lynn (2012), 2012 ONSC 1224, 2012 CarswellOnt 2540, Mulligan J. (Ont. S.C.J.) [Ontario]

FAM.III.10.b.iv.D Subject Title: Family law

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

Division of family property -- Matrimonial home -- Order for possession -- Factors to be considered by court -- Best interests of children

Mother worked throughout marriage and parties had full-time nanny -- Mother brought motion for temporary exclusive possession of matrimonial home -- Week about nesting arrangement was ordered until father's purchase of jointly owned matrimonial home closed -- Order was made notwithstanding mother left matrimonial home where children continued to reside shortly after separation -- There was evidence of high conflict -- Mother returned to matrimonial home -- Mother sought order for temporary spousal support -- Decision whether mother had compensatory basis for spousal support was best left to trial judge given contrary claims and arguments -- Father conceded mother had entitlement to spousal support on non-compensatory basis -- Father's income for 2011 was $413,500 -- Mother was unemployed -- Mother was






not intentionally unemployed since separation -- Mother was making reasonable efforts to find employment -- Father was to pay temporary spousal support of $4,000 per month until home transfer closed -- Thereafter, father was to pay temporary spousal support of $8,500.

Bodenstein v. Bodenstein (2012), 2012 ONSC 1493, 2012 CarswellOnt 2938, F. Graham J. (Ont. S.C.J.) [Ontario]

FAM.III.10.b.iv.D Subject Title: Family law

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

Division of family property -- Matrimonial home -- Order for possession -- Factors to be considered by court -- Best interests of children

Parties were married 14 years and had two children -- Parties lived separate and apart under same roof -- Mother cared for children -- One child had problems prior to date of separation -- Mother sought temporary exclusive possession of matrimonial home and custody of children -- Mother claimed father was abusive and continued cohabitation was intolerable -- Mother was granted temporary exclusive possession of matrimonial home -- On temporary basis children were to have primary residence with mother -- Father was to have reasonable access to children -- Father was to pay child support of $1,178 per month based on income of $80,444 per year -- There was no order as to temporary spousal support -- Father was to pay ongoing expenses of matrimonial home -- Child was at potential risk because of separation and stress within household -- Evidence indicated child's stress from difficulties between parties was greater than would be stress of father departing from home -- Separation exacerbated child's issues -- Father's increased involvement with children occurred since separation and was designed to manipulate long standing parental roles because of separation.

Rofail v. Naguib (2012), 2012 CarswellOnt 1364, [2012] O.J. No. 528, 2012 ONSC 931, McDermot J. (Ont. S.C.J.); additional reasons at (2012), 2012 CarswellOnt 4187, 2012 ONSC 2117, J.P.L. McDermot J. (Ont. S.C.J.) [Ontario]

FAM.III.10.b.v.A Subject Title: Family law

Classification Number: III.10.b.v.A

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

Mother worked throughout marriage and parties had full-time nanny -- Mother brought motion for temporary exclusive possession of matrimonial home -- Week about nesting arrangement was ordered until father's purchase of jointly owned matrimonial home closed -- Order was made notwithstanding mother left matrimonial home where children continued to reside shortly after separation -- There was evidence of high conflict -- Mother returned to matrimonial home -- Mother sought order for temporary spousal support









-- Decision whether mother had compensatory basis for spousal support was best left to trial judge given contrary claims and arguments -- Father conceded mother had entitlement to spousal support on non-compensatory basis -- Father's income for 2011 was $413,500 -- Mother was unemployed -- Mother was not intentionally unemployed since separation -- Mother was making reasonable efforts to find employment -- Father was to pay temporary spousal support of $4,000 per month until home transfer closed -- Thereafter, father was to pay temporary spousal support of $8,500.


FAM.III.10.b.v.A Subject Title: Family law

Classification Number: III.10.b.v.A

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

Motion by mother for interim exclusive possession of matrimonial home -- Parties started living together in 2002, married in 2004, had two children and separated in 2010 -- Since separation, parties continued to live in matrimonial home separate and apart -- Police were required to attend matrimonial home on number of occasions -- Matrimonial home was purchased by father prior to parties' marriage -- Motion granted -- It was not in children's best interests that parties continue to live in matrimonial home together -- Father had higher income than mother and could more likely afford second residence for short period of time pending sale of matrimonial home -- Granting mother exclusive possession meant continuation of nanny in children's lives, which had been constant since birth -- Father travelled as part of his business -- Father was involved in activities that took him out of matrimonial home routinely.

Somerville v. Olynyk (2012), 2012 ONSC 2101, 2012 CarswellOnt 4143, Ricchetti J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IV.1.b.iii

Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Means of spouses

Mother worked throughout marriage and parties had full-time nanny -- Mother brought motion for temporary exclusive possession of matrimonial home -- Week about nesting arrangement was ordered until father's purchase of jointly owned matrimonial home closed -- Order was made notwithstanding mother left matrimonial home where children continued to reside shortly after separation -- There was evidence of high conflict -- Mother returned to matrimonial home -- Mother sought order for temporary spousal support -- Decision whether mother had compensatory basis for spousal support was best left to trial judge given







contrary claims and arguments -- Father conceded mother had entitlement to spousal support on non-compensatory basis -- Father's income for 2011 was $413,500 -- Mother was unemployed -- Mother was not intentionally unemployed since separation -- Mother was making reasonable efforts to find employment -- Father was to pay temporary spousal support of $4,000 per month until home transfer closed -- Thereafter, father was to pay temporary spousal support of $8,500.


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

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

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

Parties married in 1980, had one child together, included in family child of wife's former relationship and disputed date of separation either in 2000 or 2006 -- Husband left family home in Brampton in summer 2000 without notice to wife and worked for one year in Ottawa returning to Brampton on weekends -- Husband signed over family home to wife in 2000 and on permanent return to Brampton in 2001 resumed residence in family home until March 2009 -- Parties disputed basis of husband's residence in home, with wife alleging that parties had separate bedrooms, did not resume intimate relations or share social or domestic activities, and husband alleging that parties reconciled -- Parties were involved in matrimonial litigation, including issues of property division and spousal support -- Determination was required of date of separation -- Determination was made that parties separated in 2000 -- Considering established jurisprudential factors to determine cohabitation and reconciliation, husband failed to satisfy onus to establish separation date at 2006 -- Separation dating from time husband left family home in 2000 was warranted -- Parties resided under same roof after summer 2001, but overwhelming evidence supported wife's allegation that parties lived separate lives as roommates and not as cohabiting couple -- Wife was in long-term public relationship with other man during relevant period.


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

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

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

Mother worked throughout marriage and parties had full-time nanny -- Mother brought motion for temporary exclusive possession of matrimonial home -- Week about nesting arrangement was ordered until







father's purchase of jointly owned matrimonial home closed -- Order was made notwithstanding mother left matrimonial home where children continued to reside shortly after separation -- There was evidence of high conflict -- Mother returned to matrimonial home -- Mother sought order for temporary spousal support -- Decision whether mother had compensatory basis for spousal support was best left to trial judge given contrary claims and arguments -- Father conceded mother had entitlement to spousal support on non-compensatory basis -- Father's income for 2011 was $413,500 -- Mother was unemployed -- Mother was not intentionally unemployed since separation -- Mother was making reasonable efforts to find employment -- Father was to pay temporary spousal support of $4,000 per month until home transfer closed -- Thereafter, father was to pay temporary spousal support of $8,500.


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

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

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

Parties cohabited for eight years and had one child -- Child was seriously disabled and would require support of parties for rest of child's life -- Applicant did not work outside of home since child's birth -- Applicant continued to be child's primary caregiver -- Respondent declared bankruptcy -- Parties had joint custody with respondent having access -- Shared parenting schedule was to begin in 2012 and child was to reside with each party on week-about basis -- Under temporary order for child support respondent was to pay $395 per month based on income of $43,640 -- Applicant had grade 12 education -- Applicant brought motion for temporary spousal support -- Respondent argued applicant was underemployed and was capable of finding employment -- Respondent argued respondent did not have ability to pay spousal support -- Respondent argued employer reduced respondent's hours at work and respondent would be missing work to take child to medical appointments one day per week when shared-parenting regime began -- Applicant made out prima facie case for interim spousal support -- Basis of applicant's claim was compensatory and non-compensatory -- Applicant was economically disadvantaged by childcare and household responsibilities -- Respondent's 2012 income was $43,600 -- Respondent was to pay $800 per month for temporary spousal support -- Temporary arrears were fixed at $3,200.

Dupuis v. Desrosiers (2012), 2012 ONCJ 261, 2012 CarswellOnt 5348, Sheilagh O'Connell J. (Ont. C.J.) [Ontario]

FAM.IV.1.b.ix Subject Title: Family law

Classification Number: IV.1.b.ix

Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Miscellaneous







Parties married in 1980, had one child together, included in family child of wife's former relationship and date of separation was determined at 2000 -- Wife was long-time bank employee earning $76,000 per year plus discretionary bonus based on performance -- Wife's income tax returns for period 2000 to 2011 showed fluctuating income between $94,000 and $75,000, depending on bonus, with average for last three years at $86,117 -- Husband held variety of service jobs until 2009 when husband left work for health reasons -- Pursuant to prior order wife paid $1,200 per month in interim spousal support and husband received $1,137.67 per month pension income -- Between 2002 and 2006 wife withdrew $93,142.18 from wife's bank account and was unable to account for funds on credit card, line or credit or other bank account -- Parties' separation agreement under which husband allegedly waived spousal support was determined invalid and wife was ordered to pay $57,797.33 equalization payment -- Husband was 70 years of age and wife was 57 years of age -- Husband applied for spousal support -- Application granted -- Considering factors and objectives of s. 15.2(4) and (6) of Divorce Act, amount of spousal support was appropriate given length of marriage, fact that wife was left with almost all family assets and husband was clearly in need of support -- Considering wife's equalization payment, spousal support based on wife's three-year average income was not warranted.


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

Classification Number: IV.1.e.iv

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

Mother worked throughout marriage and parties had full-time nanny -- Mother brought motion for temporary exclusive possession of matrimonial home -- Week about nesting arrangement was ordered until father's purchase of jointly owned matrimonial home closed -- Order was made notwithstanding mother left matrimonial home where children continued to reside shortly after separation -- There was evidence of high conflict -- Mother returned to matrimonial home -- Mother sought order for temporary spousal support -- Decision whether mother had compensatory basis for spousal support was best left to trial judge given contrary claims and arguments -- Father conceded mother had entitlement to spousal support on non-compensatory basis -- Father's income for 2011 was $413,500 -- Mother was unemployed -- Mother was not intentionally unemployed since separation -- Mother was making reasonable efforts to find employment -- Father was to pay temporary spousal support of $4,000 per month until home transfer closed -- Thereafter, father was to pay temporary spousal support of $8,500.


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







Classification Number: IV.1.e.iv

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



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

Husband and wife were married in Iran and took up residence in Canada with their two children -- Family returned to Iran where wife got stranded when husband barred her exit, and before she could return to Canada he sold matrimonial home without her consent and cohabited with another woman -- Wife brought application for interim spousal support and other relief -- Application granted -- Wife had no savings, financial means, or ability to earn income in Canada where children resided, and she never intended to be separated from them -- Although neither wife nor husband provided adequate financial information, court found that husband's income for support purposes was $120,000 per year based on his lifestyle expenses and $62,500 was taxable income -- Court departed from Spousal Support Advisory Guidelines since even high range of these would allow wife only 21.1 per cent of net disposable income which would not support her role as primary care parent -- Court ordered husband to pay wife 35 per cent of parties' net disposable income and monthly taxable payment of $4,260 plus $5,700 for costs of storage and moving household items.

Osanlo v. Onghaei (2012), 2012 CarswellOnt 4139, 2012 ONSC 2158, H. McGee J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.j.iii.A







Subject Title: Family law

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

Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination -- Change in financial circumstances -- General principles

Motion by husband for interim order varying spousal support order -- Parties commenced cohabitation in 1981, married in 1983 and had three children -- Wife was primary caregiver for children since separation -- In 1994, husband was diagnosed with early onset Atypical Parkinson's disease -- In 2002, wife was ordered to pay husband spousal support of $590 per month -- Husband's health had deteriorated rapidly since 2003 -- Husband was unable to work -- Husband received $893.76 per month as CPP disability pension -- Wife's annual income was $92,812 -- Motion dismissed -- Husband failed to demonstrate clear case of hardship or urgency -- Although wife's income had increased since 2002, increase was modest -- There was no evidence that husband's expenses had increased in any material fashion since 2002 -- Wife had been supporting children since separation -- There were no obvious excessive expenses in wife's budget, which could be eliminated without impacting children.

Kuziora v. Fournier (2012), [2012] O.J. No. 1043, 2012 CarswellOnt 2890, 2012 ONSC 1569, J.S. Fregeau J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.l.v.A Subject Title: Family law

Classification Number: IV.1.l.v.A

Support -- Spousal support under Divorce Act and provincial statutes -- Enforcement of award -- Limitation or reduction of arrears -- General principles









FAM.IV.1.m.iv.B Subject Title: Family law

Classification Number: IV.1.m.iv.B

Support -- Spousal support under Divorce Act and provincial statutes -- Practice and procedure -- Evidence -- Of financial status

Husband and wife were married in Iran and took up residence in Canada with their two children -- Family returned to Iran where wife got stranded when husband barred her exit, and before she could return to Canada he sold matrimonial home without her consent and cohabited with another woman -- Wife brought application for disclosure of documents about husband's finances -- Application granted -- Court ordered both husband and wife to disclose financial and other documents.

Osanlo v. Onghaei (2012), 2012 CarswellOnt 4139, 2012 ONSC 2158, H. McGee J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IV.3.a.ii

Support -- Child support under federal and provincial guidelines -- Application of guidelines -- Who is a parent

Mother had first child from prior relationship with first father -- Mother married second father in 2001 -- Second father stood in place of parent for first child -- Mother and second father had second child in 2007 -- Parties separated in 2009 -- First father was paying child support for first child based on income of $72,000 -- Mother brought application against second father for child support -- Application granted -- Second father's total child support obligation for both children was $555 per month based on imputed income of $36,000 -- Second father was wholly responsible for table amount of $333 per month for second child -- Second father was also required to contribute one-third of child support payable by first father for first child -- First father was paying $665 per month so second father was required to contribute $222 -- Second father was not entitled to free ride at first father's expense.


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

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

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

Parties never cohabited and had one child -- Child always resided with mother -- Mother had dual Canadian and American citizenship -- Father was landed immigrant in Canada -- Mother was granted final custody of child -- Order was silent as to access -- Income of $53,000 per year was imputed to father and father was to pay table amount of child support -- Father was given deportation notice arising out of father's criminal convictions -- Father was entitled to remain in Canada pending disposition of appeal process -- Father brought motion to change support orders -- Father sought order for joint custody and access -- Mother moved to Florida after being served with motion to change and argued Florida was appropriate jurisdiction to deal with parenting issues -- There was no court proceeding between parties in Florida -- Mother brought motion for court to decline jurisdiction to hear father's motion to change custody order -- Mother's motion was dismissed -- Court had jurisdiction to hear motion to change parenting order -- Child was habitually resident in Ontario when father commenced motion to change -- Mother did not satisfy onus to show case should be heard in Florida -- There was material change in circumstances -- Father did not earn income imputed to father -- Father had no medical reason for not working -- Father was earning cash income that supplemented father's declared employment income or father was intentionally under-employed -- Father's income was fixed at $32,203 for ongoing child support purposes -- Guideline amount for one child was $271 per month -- Support arrears were reduced by $4,500.

Jean-Francois v. Barnes (2012), 2012 CarswellOnt 2739, 2012 ONCJ 124, S.B. Sherr J. (Ont. C.J.) [Ontario]




Mother moved with child unilaterally to different city -- Mother claimed relocation was out of fear of safety of mother and child on account of alleged abusive behaviour by father -- Father sought finding of contempt against mother and sought custody of child -- In alternative father sought order requiring mother to return to original city with child to resume access previously ordered -- Mother sought interim sole custody -- Mother was ordered to return child to original city within specified time -- If mother returned with child mother would continue to have primary care of child and father's access rights on unsupervised basis were to continue -- Father made out prima facie case that mother was not justified in concluding safety was at risk requiring move -- Father made out prima facie case that motion pursued course of conduct intended to frustrate father's right to access -- It was in child's best interests to remain in original city where father resided -- No order as to custody was made until parenting capacity assessment was completed -- Father was to pay child support of $680 based on income of $75,000 per year, which amount was in addition to amount of $250 agreed to be paid on monthly basis in accordance with order.

Otari v. Otari (2012), 2012 CarswellOnt 5243, 2012 ONSC 2576, Peter Annis J. (Ont. S.C.J.) [Ontario]











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

Classification Number: IV.3.b.vi

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Child care expenses

Parties had one child -- Child resided with mother since separation -- Child had no relationship with father for number of years -- Father's income was $66,500 -- Mother's income for 2010 was $18,941 -- Consent order required father to pay half daycare expenses and child support of $382 per month based on income of $44,400 -- Father paid child support but did not pay daycare, extraordinary expenses or medical costs of child -- Mother brought application for retroactive child support, retroactive daycare, medical and extraordinary expenses -- Despite father's disregard of terms of order child did not suffer significant lack of care and child's well-being did not suffer -- Father as responsible for retroactive child support for three years of 2007, 2008 and 2009, with total arrears of monthly child support of $7,381 -- There was significant degree of alienation of child from father encouraged by mother but father abandoned child for five years -- Father was to pay $1,316 for cost incurred for daycare in period 2002 to 2005 as was previously ordered -- Claim for medical expenses was dismissed -- Mother did not satisfy onus that medical expenses were incurred and not paid -- Father was to pay mother $55 for extraordinary expenses for 2011.

Osborne v. Moore (2012), 2012 ONSC 1563, 2012








CarswellOnt 2827, Turnbull J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IV.3.b.vi

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Child care expenses

Mother had custody of one child after separating from father -- In 2005, father's child support obligation was based on annual income of $30,000 -- Mother had another child with new spouse at some point -- By 2009, mother's income was about $60,000 per year -- Mother hired live-in nanny in September 2009 -- Canada Revenue Agency deemed nanny's income to be $1,794 per month -- Father's 2009 income was $35,887 -- Father quit his job in 2010 after being denied workers' compensation -- In December 2010, child support was reduced to $180 per month on interim basis on consent -- Father's 2010 income was $28,680.35 while his 2011 income was $21,000 -- Mother brought motion for retroactive variation of child support -- Motion granted -- Father's share of nanny expenses was $235 per month from September to December 2009, $203.07 per month for 2010, and $162.78 per month for 2011 -- Amounts for 2011 and ongoing were to be adjusted annually in accordance with actual incomes -- Portion of nanny's income attributed to childcare was only $1,255.80 in light of her housekeeping duties unrelated to children -- Amount that mother could claim for one child was $627.90 per month -- Father was required to pay his proportionate share of this amount retroactive to September 2009.

Ranger v. Baguioro (2012), 2012 ONSC 1349, 2012 CarswellOnt 2816, Lack J. (Ont. S.C.J.) [Ontario]

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

Oldest child was over 18 and was not in school -- Child planned to return to school in September -- Father brought motion to change order -- Father claimed father overpaid $5,652 in child support and amount should be applied to arrears -- Father claimed father overpaid $2,965 in s. 7 expenses and amount should be applied to arrears -- Father sought for bi-weekly arrears payments to be reduced to $282 per payment -- Child support and s. 7 expenses were to be paid for April 2011 when child was in school -- Child support was to be paid from May 1, 2011 to November 30, 2011 inclusive, based on child being in full-time attendance at school from September to November 2011 -- Child was ill from December 2011 to February 2012, and fell within definition of child of marriage because child was unable to withdraw from parents' charge because of illness and was unable to obtain necessaries of life on own -- No child support was payable from March 2012 to August 2012, when child was working on almost full-time to save money to return to school -- On assumption






child returned to school in September 2012, support was payable in accordance with order as of September 2012 -- There was no reason why s. 7 expenses should be credited to father -- There was no reason to reduce amount of bi-weekly payments and payments were to remain at $403.

Maynard v. Maynard (2012), 2012 ONSC 1631, 2012 CarswellOnt 2930, Stanley J. Kershman 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



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

Child was born to unwed parents in October 2006, and order was made giving custody to mother and access to father -- Mother married resident of New Jersey in August 2011 -- In anticipation of marriage and move to







New Jersey, mother requested personal leave from her position as full-time teacher for academic year 2011/2012 -- Orders were made prohibiting mother from moving to New Jersey with child -- Mother took on supply teaching at reduced annual income in fall of 2011 -- Mother brought motion for child support -- Motion granted -- In calculating child support, no income was imputed to mother for academic year 2011/2012 -- It was entirely reasonable and responsible for mother, in June 2011, to make plans for future assuming that she would be moving with child to New Jersey following her marriage -- It was equally reasonable and responsible for mother to advise school board that she would not be teaching in fall of 2011 -- In spring and summer of 2011, mother did not anticipate any problems with moving to New Jersey -- Parties were discussing alternate access arrangements during this period.

Maloney v. Choo-Shee-Nam (2012), 2012 ONSC 3254, 2012 CarswellOnt 9145, Penny J. (Ont. S.C.J.) [Ontario]

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

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

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

Father had small construction business and also farmed with grandfather on family farm -- Mother had child from prior relationship when she married father in 2001 -- Mother and father had second child in 2007 -- Parties separated in February 2009 and mother had custody of children -- Father's declared income in 2009 and 2010 was $5,354 and $4,012 -- Father did not file tax return in 2011 due to alleged lack of income -- Father alleged he would not be paid for farm work until corn crop was harvested -- Mother brought application for child support -- Application granted -- Father's income was imputed to be $36,000 for child support purposes -- Father did construction jobs for cash to avoid paying taxes -- Adverse inference was drawn against father for failing to call grandfather to testify -- Adverse inference was also drawn against father for failing to call his sister to testify since she acted as his accountant -- Court had been imputing income to father since 2006 in connection with prior relationship -- Father essentially expected court to guess his income so he had only himself to blame for any perceived unfairness.


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

Classification Number: IV.3.h.v

Support -- Child support under federal and provincial guidelines -- Retroactive award -- Payor's avoidance of obligation

Parties had one child -- Child resided with mother since separation -- Child had no relationship with father







for number of years -- Father's income was $66,500 -- Mother's income for 2010 was $18,941 -- Consent order required father to pay half daycare expenses and child support of $382 per month based on income of $44,400 -- Father paid child support but did not pay daycare, extraordinary expenses or medical costs of child -- Mother brought application for retroactive child support, retroactive daycare, medical and extraordinary expenses -- Despite father's disregard of terms of order child did not suffer significant lack of care and child's well-being did not suffer -- Father as responsible for retroactive child support for three years of 2007, 2008 and 2009, with total arrears of monthly child support of $7,381 -- There was significant degree of alienation of child from father encouraged by mother but father abandoned child for five years -- Father was to pay $1,316 for cost incurred for daycare in period 2002 to 2005 as was previously ordered -- Claim for medical expenses was dismissed -- Mother did not satisfy onus that medical expenses were incurred and not paid -- Father was to pay mother $55 for extraordinary expenses for 2011.

Osborne v. Moore (2012), 2012 ONSC 1563, 2012 CarswellOnt 2827, Turnbull J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IV.3.h.vii

Support -- Child support under federal and provincial guidelines -- Retroactive award -- Multiple factors considered



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

Oldest child was over 18 and was not in school -- Child planned to return to school in September -- Father brought motion to change order -- Father claimed father overpaid $5,652 in child support and amount should be applied to arrears -- Father claimed father overpaid $2,965 in s. 7 expenses and amount should be applied to arrears -- Father sought for bi-weekly arrears payments to be reduced to $282 per payment -- Child support and s. 7 expenses were to be paid for April 2011 when child was in school -- Child support was to be paid from May 1, 2011 to November 30, 2011 inclusive, based on child being in full-time attendance at school from September to November 2011 -- Child was ill from December 2011 to February 2012, and fell within definition of child of marriage because child was unable to withdraw from parents' charge because of illness and was unable to obtain necessaries of life on own -- No child support was payable from March 2012 to August 2012, when child was working on almost full-time to save money to return to school -- On assumption child returned to school in September 2012, support was payable in accordance with order as of September 2012 -- There was no reason why s. 7 expenses should be credited to father -- There was no reason to reduce amount of bi-weekly payments and payments were to remain at $403.


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









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

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

Support -- Child support under federal and provincial guidelines -- Variation or termination of award -- Change in circumstances -- Change in status as child of marriage

Oldest child was over 18 and was not in school -- Child planned to return to school in September -- Father brought motion to change order -- Father claimed father overpaid $5,652 in child support and amount should be applied to arrears -- Father claimed father overpaid $2,965 in s. 7 expenses and amount should be applied to arrears -- Father sought for bi-weekly arrears payments to be reduced to $282 per payment -- Child support and s. 7 expenses were to be paid for April 2011 when child was in school -- Child support was to be paid from May 1, 2011 to November 30, 2011 inclusive, based on child being in full-time attendance at school from September to November 2011 -- Child was ill from December 2011 to February 2012, and fell within definition of child of marriage because child was unable to withdraw from parents' charge because of illness and was unable to obtain necessaries of life on own -- No child support was payable from March 2012 to August 2012, when child was working on almost full-time to save money to return to school -- On assumption child returned to school in September 2012, support was payable in accordance with order as of September 2012 -- There was no reason why s. 7 expenses should be credited to father -- There was no reason to reduce amount of bi-weekly payments and payments were to remain at $403.


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

Oldest child was over 18 and was not in school -- Child planned to return to school in September -- Father brought motion to change order -- Father claimed father overpaid $5,652 in child support and amount should be applied to arrears -- Father claimed father overpaid $2,965 in s. 7 expenses and amount should be applied to arrears -- Father sought for bi-weekly arrears payments to be reduced to $282 per payment -- Child support and s. 7 expenses were to be paid for April 2011 when child was in school -- Child support was to be paid from May 1, 2011 to November 30, 2011 inclusive, based on child being in full-time attendance at school from September to November 2011 -- Child was ill from December 2011 to February 2012, and fell within definition of child of marriage because child was unable to withdraw from parents' charge because of illness and was unable to obtain necessaries of life on own -- No child support was payable from March 2012 to August 2012, when child was working on almost full-time to save money to return to school -- On assumption child returned to school in September 2012, support was payable in accordance with order as of September 2012 -- There was no reason why s. 7 expenses should be credited to father -- There was no reason to reduce





amount of bi-weekly payments and payments were to remain at $403.


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

Classification Number: V.2.a.i

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- General principles

Parties married in 1980, had one child together, included in family child of wife's former relationship and date of separation was determined at 2000 -- Husband left family home in Brampton in summer 2000 without notice to wife and worked for one year in Ottawa returning to Brampton on weekends -- Later in 2000 husband agreed to sign over house to wife to allow remortgaging at better rate and wife provided property and mortgage documents at signing in October 2000 -- Signing of property documents occurred at same time wife alleged husband signed separation agreement pursuant to which husband waived equalization payment and spousal support -- Parties disputed validity of separation agreement and husband took position that he was unaware of signing anything other than property and mortgage documents -- Parties were involved in matrimonial litigation including property division and spousal support -- Determination was required of validity of separation agreement -- Determination was made that separation agreement was invalid -- Wife failed to satisfy onus to establish validity of domestic contract -- Evidence supported conclusion that wife provided property and mortgage documents along with last page of separation agreement for husband's signature and wife misrepresented what husband was signing -- Evidence of witness to signatures supported conclusion that husband merely signed where told to sign -- Totality of circumstances, including insufficient financial disclosure, absence of independent advice, husband's failure to understand what he was signing and misrepresentation of content of agreement, required conclusion that agreement was invalid.


FAM.V.6.b Subject Title: Family law

Classification Number: V.6.b

Domestic contracts and settlements -- Variation of terms -- Jurisdiction of courts

Parties separated in 2001 and made separation agreement in 2004 -- Agreement set out that husband would pay wife $8,500/month in spousal support -- Agreement also provided that any variations in support would be dealt with by mediation/arbitration with specific mediator -- In 2010, husband retired from full-time position as lawyer to take counsel position with reduced income -- Husband proposed variation in support accordingly -- Mediation failed and arbitration did not take place -- Husband stopped paying support -- Wife filed separation agreement with court in effort to enforce its terms -- Husband filed motion to vary support --







Wife brought summary judgment motion to dismiss husband's motion -- Wife's motion was dismissed -- Wife appealed from dismissal -- Appeal allowed -- Arbitration agreement was still valid and enforceable, so procedure was for court to stay own proceeding and compel parties to arbitrate -- Agreement was clear that parties waived right to further litigation -- Allowing husband's interpretation of applicable law would have effect of allowing parties to circumvent obligations under agreements -- Parties could be wary of submitting agreements for fear that terms would be varied in court -- Wife was granted summary judgment.

Grosman v. Cookson (2012), 2012 CarswellOnt 10919, 2012 ONCA 551, D. O'Connor A.C.J.O., Ducharme J.A. (Ont. C.A.); reversing (2011), 12 R.F.L. (7th) 480, 2011 CarswellOnt 13084, 2011 ONSC 7032, J. Johnston J. (Ont. S.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





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

Parties were married in 2002 and separated in 2006 -- Parties had two children: daughter born in 2004 and








son born in 2006 -- Parties signed separation agreement in 2006, providing that parties would have joint custody with children primarily residing with mother -- Mother moved to new town in 2010 and left children in care of father -- Mother did not bring application to change residence of children -- Father made application for mother not to change residence of children, and for agreement to be amended so that he was to have primary care of children -- In response, mother brought application to change children's residence and have agreement amended accordingly -- Father's application granted -- Mother's application dismissed -- Children had been in primary care of father for two years and were doing well in home and community -- Although both parties and their new partners were capable of caring for children, father and his partner had more stable environment to offer -- Mother maintained relationship with children through access visits and would be able to continue to do so if father was given primary care -- 200-kilometre distance between residences meant that it was too hard on children to have them travel each weekend to mother's residence -- Mother was to receive majority of time with children during holidays and school vacations -- Father limited mother's access on occasion but compensated so that mother actually had more access than was set out in temporary order -- Father's conduct was not reason to deny him custody -- Children were in stable routines having had previous disruptions due to separation and mother's move -- Further disruption to children was not in their best interests.

Markall v. Markall (2012), 2012 CarswellOnt 5186, 2012 ONSC 687, J.S. Fregeau J. (Ont. S.C.J.); additional reasons at (2012), 2012 CarswellOnt 4983, 2012 ONSC 2402, J.S. Fregeau J. (Ont. S.C.J.) [Ontario]

FAM.IX.4.c Subject Title: Family law

Classification Number: IX.4.c

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

Parties had two children -- Mother was awarded sole custody and father access -- Mother wished to relocate with children to different province -- Mother's employer would allow mother to move job to other province and mother would be able to work mostly from home -- Mother's new partner resided in other province -- Mother's new partner had comfortable relationship with children -- Father had ongoing problem with depression -- Father exercised regular access -- Father was convicted of criminal harassment in relation to mother and was serving term of probation that prohibited direct contact -- Access arrangements were by third party -- Mother was permitted to change permanent residence of children to other province -- Father was to have access -- If children moved to other province there was ample opportunity for father to maintain relationship with children -- There were financial benefits associated with move that would make difference in lives of children -- There was no compelling reason to prevent mother from relocating.

Hodder v. Hodder (2012), 2012 CarswellOnt 2753, 2012 ONCJ 135, J.C. Baldock J. (Ont. C.J.) [Ontario]















FAM.IX.4.d Subject Title: Family law

Classification Number: IX.4.d

Custody and access -- Terms of custody order -- Mobility

Parties married in December 2005 and separated in July 2011 -- Parties had two children, L, born in April 2005, and B, born in January 2007 -- In October 2007, parties relocated from Toronto to Timmins, where father was from and where his family continued to reside -- On April 1, 2012, mother left Timmins with children and moved them to Toronto -- On May 4, 2012, mother was ordered to return children to Timmins -- Mother appealed -- Appeal dismissed -- Judge did not apply wrong test -- Judge conducted proper inquiry of where boys should reside on interim basis -- Mother did not establish that best interests of children would be served by them remaining in Toronto -- Judge did not base his decision either entirely or disproportionately on fact of mother's conduct in removing children.

Hazelwood v. Hazelwood (2012), 2012 CarswellOnt 11233, 2012 ONSC 5069, L.L. Gauthier J. (Ont. S.C.J.); affirming (2012), 2012 CarswellOnt 11397, R. E. W. Carr J. (Ont. C.J.) [Ontario]

FAM.IX.4.d







Subject Title: Family law


Custody and access -- Terms of custody order -- Mobility



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

Classification Number: IX.5.a.ii

Custody and access -- Variation of custody order -- Factors to be considered -- Best interests of child

Motion by mother to change order for shared custody of child, aged five, so that primary residence of child with mother -- Motion by father to change order so that father had sole custody -- Child lived primarily with mother from birth until spring 2007 -- Since April 2009, child had lived with father at home of parental grandmother -- Mother and father agreed in October 2010 that mother would have temporary access on three weekends out of every four and that midweek visits would be eliminated -- Order that child maintain primary residence with father and continue to generous specified time with mother -- Material change in circumstances was that father had denied mother's access for over three months in 2009, and was making unilateral decisions of child -- Mother had little choice but to bring case back to court -- Child had lived in stable home environment for over three years and was thriving -- Mother had historically struggled to maintain stable residence -- Father had provided reasonable plan to care for child -- In child's best interests that mother and father continue to share joint custody of child -- Communication has improved and there are currently no disagreements about child's medical care, education or religion.

Duncan v. Johnson (2012), 2012 CarswellOnt 4093, 2012 ONCJ 186, S.B. Sherr J. (Ont. C.J.) [Ontario]






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

Classification Number: IX.5.a.x

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



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

Classification Number: IX.5.a.x

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

Parties dated for two years and broke up while mother was pregnant with their child -- When child was three years old, order was made giving custody to mother and access to father on alternating weekends, every Wednesday evening, and specified other days (original order) -- Mother married resident of New Jersey when child was four years old -- Mother brought motion to vary original order to permit her to take child to New Jersey to live with her husband -- Motion granted -- Mother's marriage and plan to move to New Jersey represented material change in circumstances and was bona fide -- Given that mother was custodial parent, great weight had to be accorded to her views about prospective benefits of relocation -- Father's involvement in child's life had been limited outside of access visits -- There was no evidence to suggest that father's relationship with child would be seriously jeopardized if access arrangements were altered so as to take account of relocation -- Any detrimental impact on maximization of child's contact with father was more than offset by benefits of child being with his mother in her new home environment -- Change in custody would be extraordinarily disruptive and not in child's best interests -- Benefits to child of moving to New Jersey outweighed any limited disruption resulting from move.





Maloney v. Choo-Shee-Nam (2012), 2012 ONSC 3254, 2012 CarswellOnt 9145, Penny J. (Ont. S.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

Parties were married in 2002 and separated in 2006 -- Parties had two children: daughter born in 2004 and son born in 2006 -- Parties signed separation agreement in 2006, providing that parties would have joint custody with children primarily residing with mother -- Mother moved to new town in 2010 and left children in care of father -- Mother did not bring application to change residence of children -- Father made application for mother not to change residence of children, and for agreement to be amended so that he was to have primary care of children -- In response, mother brought application to change children's residence and have agreement amended accordingly -- Father's application granted -- Mother's application dismissed -- Children had been in primary care of father for two years and were doing well in home and community -- Although both parties and their new partners were capable of caring for children, father and his partner had more stable environment to offer -- Mother maintained relationship with children through access visits and would be able to continue to do so if father was given primary care -- 200-kilometre distance between residences meant that it was too hard on children to have them travel each weekend to mother's residence -- Mother was to receive majority of time with children during holidays and school vacations -- Children were in stable routines having had previous disruptions due to separation and mother's move -- Further disruption to children was not in their best interests.


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

Classification Number: IX.6.c.xi

Custody and access -- Joint custody -- Factors to be considered -- Multiple factors considered

Parties lived together for 11 years and were married additional five years -- Parties had one child -- Temporary order provided for joint custody -- Child resided with father on weekends and with mother during week -- At time of separation both parties had businesses -- Mother sought sole custody with access to father -- Parties had high conflict relationship -- Mother wished to move child to different community -- Child was currently in French immersion -- Mother's plan involved moving child to English only school -- Property and businesses were valued -- It was in child's best interests for mother to have sole custody with liberal access to father -- It was clear French immersion was not appropriate for child -- Father put own interests ahead of those of child -- Father's new relationship had not yet proved stable -- Mother would continue to encourage









strong relationship between father and child -- Hostility between parents indicated parents were not suitable candidates for joint parenting -- Mother was able to move with child to new community -- It was not in child's best interests to remain in French immersion until end of school year -- Move was to take place at suitable break in academic year -- Access was set out -- Father was granted exclusive possession of matrimonial home -- Father was to pay equalization payment of $43,245 within 30 days.




Custody and access -- Joint custody -- Shared parenting

Mother had first child during prior relationship with first father -- Mother married second father in 2001 -- Second father stood in place of parent for first child -- Mother and second father had second child in 2007 -- Mother and second father separated in 2009 -- First child did not wish to see second father -- Father brought application for shared custody of second child -- Application dismissed on terms -- Mother was granted sole custody with father having access to first child in accordance with her wishes and specified access to second child -- Shared custody of second child was not in her best interests -- Mother had been second child's primary caregiver since her birth -- Father already exercised substantial time-sharing -- Second child seemed well adjusted and happy according to both parties -- Shared custody of second child would result in first child seeing less of her -- Impact of father's relationship with new partner was still uncertain.




Custody and access -- Access -- Factors to be considered -- Maximization of contact with each parent

Parties were married in 2002 and separated in 2006 -- Parties had two children: daughter born in 2004 and son born in 2006 -- Parties signed separation agreement in 2006, providing that parties would have joint custody with children primarily residing with mother -- Mother moved to new town in 2010 and left children in care of father -- Mother did not bring application to change residence of children -- Father made application for mother not to change residence of children, and for agreement to be amended so that he was to have primary care of children -- In response, mother brought application to change children's residence and have agreement amended accordingly -- Father's application granted -- Mother's application dismissed -- Mother maintained relationship with children through access visits and would be able to continue to do so if father was given primary care -- 200-kilometre distance between residences meant that it was too hard on






children to have them travel each weekend to mother's residence -- Mother was to receive majority of time with children during holidays and school vacations -- Father limited mother's access on occasion but compensated so that mother actually had more access than was set out in temporary order -- Father's conduct was not reason to deny him custody.


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

Classification Number: IX.8.a.xiii

Custody and access -- Access -- Factors to be considered -- Miscellaneous





Custody and access -- Access -- Terms of order

Parties had two children -- Mother was awarded sole custody and father access -- Mother wished to relocate with children to different province -- Mother's employer would allow mother to move job to other province and mother would be able to work mostly from home -- Mother's new partner resided in other province -- Mother's new partner had comfortable relationship with children -- Father had ongoing problem with depression











-- Father exercised regular access -- Father was convicted of criminal harassment in relation to mother and was serving term of probation that prohibited direct contact -- Access arrangements were by third party -- Mother was permitted to change permanent residence of children to other province -- Father was to have access -- If children moved to other province there was ample opportunity for father to maintain relationship with children -- There were financial benefits associated with move that would make difference in lives of children -- There was no compelling reason to prevent mother from relocating.

Hodder v. Hodder (2012), 2012 CarswellOnt 2753, 2012 ONCJ 135, J.C. Baldock 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

Mother and father had one child prior to separation -- Mother had sole custody of child while father exercised specified access -- Father's access went well but he wanted more time with child -- Father refused to waive his mid-week access time during summer so mother could take child on vacation -- Father brought motion for variation of access -- Mother brought cross-motion for variation of access -- Motion dismissed; cross-motion granted -- Access was suspended for two weeks each summer so mother could take child on vacation -- Father failed to establish material change in circumstances -- Father was really seeking joint custody in guise of increased access -- Father was seeking radical departure from life child had known on no other basis than father's own wants and desires -- Father's refusal to waive mid-week access was unforeseen consequence of prior order and so amounted to material change in circumstances -- It was in child's best interests to be able to go on vacation with mother.


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

Classification Number: IX.8.g

Custody and access -- Access -- Supervised access

Ruling regarding access -- Parties commenced living together in 2001, married in 2003, had one child, separated in 2009 and divorced -- Child lived with mother following parties' separation -- Father had alcohol abuse problem -- In 2009, father attended rehabilitation centre for about two months -- After his release, father's alcohol problem escalated -- Father's living situation was unstable -- Father claimed to be sleeping on friends' couches and on street -- Father was afforded access every evening in home following separation -- For period of approximately one year, father had no contact with child -- Supervised access was ordered -- Father exercised access on 39 per cent of his scheduled days -- Office of Children's Lawyer investigator recommenced







that father's supervised access hours be reduced -- Father was awarded supervised access on alternative Sundays for two hours -- Access arrangements were in best interests of child, for purpose of fostering strong relationship with her father -- Reduction in number of hours from was warranted because father had not been exercising regular access and he seemed to have difficulty managing longer visit -- Shorter two-hour visit could improve consistency of visits and their quality.

Atkinson v. Ahmed (2012), 2012 CarswellOnt 3505, 2012 ONSC 1908, K. van Rensburg J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IX.8.i

Custody and access -- Access -- Access where child protection order

Child was apprehended at birth -- Child was placed with family that had adopted child's sister -- Child suffered from significant medical problems -- Child required significant number of medical appointments and medications -- Child had to undergo surgeries -- Parents sought return of child subject to supervision order -- Child was in need of protection -- There was no reasonable prospect of significant change in respondents' circumstances or abilities that could justify extension of time -- Mother was victim of sexual abuse as child -- Parents existed on $410 per month -- Evidence disclosed little change in financial and physical resources available to parents in foreseeable future -- Parents and maternal grandmother failed to appreciate nature and severity of demands of child's care -- There was lack of reality in proposals of parents -- Maternal grandmother met child on two or three occasions -- Maternal grandmother suffered many illnesses -- Foster parents were completely bonded with child -- Child was made Crown ward -- No order was made for access.

Children's Aid Society of London & Middlesex v. N. (A.L.) (2012), 2012 CarswellOnt 4053, 2012 ONSC 585, Henry Vogelsang J. (Ont. S.C.J.) [Ontario]

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

Classification Number: IX.8.i

Custody and access -- Access -- Access where child protection order

Society sought Crown wardship with no access -- Children were in need of protection -- Children were high needs -- Children were inappropriately aware of sexual behaviour and sexual language for young age -- Mother related in incoherent and disorganized manner -- Mother was unable to manage own interpersonal and emotional intensities -- Father put own interests ahead of those of children -- Neither parent progressed significantly in ability to parent children since protection finding -- Apprehension concerns were still valid -- Crown wardship was in best interests of children -- Crown wardship was to be without access






-- Children had no secure attachment to either parent.

Kenora Rainy River Child & Family Services v. C. (P.) (2012), 2012 ONCJ 179, 2012 CarswellOnt 4054, Jennifer Hoshizaki J. (Ont. C.J.) [Ontario]

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

Classification Number: XV.4.a.i

Children in need of protection -- Application for temporary custody -- Grounds for temporary order -- General principles

Application by society for order placing child, aged one, in care of father subject to society supervision and access to child's mother -- Mother opposed application and asked that child be placed in her care -- Earlier order in September 2011 found child in need of protection and ordered that child be placed in care of parents subject to supervision by society for period of six months -- Parties co-habited with child and mother's children, aged ten and nine, subsequent to earlier order -- Relationship between mother and father deteriorated during fall 2011 -- Nine people residing in mother's parent's home -- Mother and her two children not settled in home of her parents and children had missed many days of school -- Child cared for by father's parents while father at work -- Mother had child in her care on Monday, Wednesday and Thursday of each week from 4:00 p.m. to 7:00 p.m. and on alternate weekends from Friday at 4:00 p.m. until Sunday at 12:00 p.m. -- Temporary order changing earlier order to provide that child shall be placed in temporary care and custody of mother and father subject to supervision by society subject to conditions that child shall reside in care of mother every Monday, Wednesday and Thursday of each week from 1:00 p.m. to 7:00 p.m. and on alternate weekends from Friday at 4:00 p.m. until Sunday at 4:00 p.m. and that child shall reside with father at all other times -- Child had closely bonded with mother and her siblings -- Child required calm and stable residence with predictable routines -- Mother unable to provide such calm environment -- As mother had been primary caregiver of child with assistance of father and services recommended by society, she should continue to play active and significant role in child's upbringing -- Mother and father shall continue to have joint charge of child notwithstanding father's act of self help.

Windsor-Essex Children's Aid Society v. T. (E.) (2012), 2012 ONCJ 109, 2012 CarswellOnt 2620, Barry M. Tobin J. (Ont. C.J.) [Ontario]



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






Society brought motion for summary judgment -- Society sought order that older child be placed in custody of maternal grandparents with access to mother at discretion of grandparents -- Society sought order that younger child be made Crown ward with no access to either parent -- Parents contravened court orders -- There was little or no progress with respect to mother's ability to recognize risks and protect children after society worked with mother for five years -- Mother gave priority to relationship with father -- Mother presented no evidence -- Mother did not show she was able to put children's needs ahead of her own -- Father had extensive criminal record -- Father's drug tests were positive -- Father did not follow through with society's expectation with respect to substance abuse treatment or attending parenting program -- There was no genuine issue for trial in relation to either child -- Children continued to be in need of protection -- It was unsafe and contrary to interests of children to return either to mother's care -- Summary judgment was granted in favour of society.

Children's Aid Society of Hamilton v. S. (R.) (2012), 2012 ONSC 1523, 2012 CarswellOnt 2839, [2012] O.J. No. 1037, A. Pazaratz J. (Ont. S.C.J.) [Ontario]




Child was apprehended at birth -- Child was placed with family that had adopted child's sister -- Child suffered from significant medical problems -- Child required significant number of medical appointments and medications -- Child had to undergo surgeries -- Parents sought return of child subject to supervision order -- Child was in need of protection -- There was no reasonable prospect of significant change in respondents' circumstances or abilities that could justify extension of time -- Mother was victim of sexual abuse as child -- Parents existed on $410 per month -- Evidence disclosed little change in financial and physical resources available to parents in foreseeable future -- Parents and maternal grandmother failed to appreciate nature and severity of demands of child's care -- There was lack of reality in proposals of parents -- Maternal grandmother met child on two or three occasions -- Maternal grandmother suffered many illnesses -- Foster parents were completely bonded with child -- Child was made Crown ward -- No order was made for access.

Children's Aid Society of London & Middlesex v. N. (A.L.) (2012), 2012 CarswellOnt 4053, 2012 ONSC 585, Henry Vogelsang J. (Ont. S.C.J.) [Ontario]









Society sought Crown wardship with no access -- Children were in need of protection -- Children were high needs -- Children were inappropriately aware of sexual behaviour and sexual language for young age -- Mother related in incoherent and disorganized manner -- Mother was unable to manage own interpersonal and emotional intensities -- Father put own interests ahead of those of children -- Neither parent progressed significantly in ability to parent children since protection finding -- Apprehension concerns were still valid -- Crown wardship was in best interests of children -- Crown wardship was to be without access -- Children had no secure attachment to either parent.

Kenora Rainy River Child & Family Services v. C. (P.) (2012), 2012 ONCJ 179, 2012 CarswellOnt 4054, Jennifer Hoshizaki J. (Ont. 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

Respondent mother had four children -- After mother was charged with assault with weapon against children, children were brought into care of Children's Aid Society -- Parties subsequently signed statement of agreed facts whereby children were found to be in need of protection -- Children we made wards of Society for six months, with access to mother in Society's discretion -- Society brought motion for summary judgment seeking order of Crown wardship -- Motion granted -- There was no genuine issue for trial -- Children had maximum of 24 months to remain in care as temporary wards -- Mother wasted first 15 months of statutory time limit -- There was no realistic likelihood that, within next eight months, mother would be able to address protection concerns -- Denying Society's motion would have only allowed mother to "buy" more time, and that was something that law did not permit -- Mother was not able to provide stable, structured and highly dedicated parenting that children required.

Children's Aid of Society of Toronto v. C. (F.) (2012), 2012 ONCJ 123, 2012 CarswellOnt 2691, Robert J. Spence J. (Ont. C.J.) [Ontario]

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

Classification Number: XV.5.c.i

Children in need of protection -- Application for permanent custody -- Making temporary order permanent -- General principles






Respondent mother had four children -- After mother was charged with assault with weapon against children, children were brought into care of Children's Aid Society -- Parties subsequently signed statement of agreed facts whereby children were found to be in need of protection -- Children we made wards of Society for six months, with access to mother in Society's discretion -- Society brought motion for summary judgment seeking order of Crown wardship -- Motion granted -- There was no genuine issue for trial -- Children had maximum of 24 months to remain in care as temporary wards -- Mother wasted first 15 months of statutory time limit -- There was no realistic likelihood that, within next eight months, mother would be able to address protection concerns -- Denying Society's motion would have only allowed mother to "buy" more time, and that was something that law did not permit -- Mother was not able to provide stable, structured and highly dedicated parenting that children required.

Children's Aid of Society of Toronto v. C. (F.) (2012), 2012 ONCJ 123, 2012 CarswellOnt 2691, Robert J. Spence 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

Society brought motion for summary judgment -- Society sought order that older child be placed in custody of maternal grandparents with access to mother at discretion of grandparents -- Society sought order that younger child be made Crown ward with no access to either parent -- Parents contravened court orders -- There was little or no progress with respect to mother's ability to recognize risks and protect children after society worked with mother for five years -- Mother gave priority to relationship with father -- Mother presented no evidence -- Mother did not show she was able to put children's needs ahead of her own -- Father had extensive criminal record -- Father's drug tests were positive -- Father did not follow through with society's expectation with respect to substance abuse treatment or attending parenting program -- There was no genuine issue for trial in relation to either child -- Children continued to be in need of protection -- It was unsafe and contrary to interests of children to return either to mother's care -- Summary judgment was granted in favour of society.

Children's Aid Society of Hamilton v. S. (R.) (2012), 2012 ONSC 1523, 2012 CarswellOnt 2839, [2012] O.J. No. 1037, A. Pazaratz J. (Ont. S.C.J.) [Ontario]

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

Classification Number: XV.7.g.iii

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







-- Time for appeal

Extension of time to file leave to appeal -- Mother's two children were apprehended by respondent Children's Aid Society ("Society") -- Society, inter alia, requested that mother attend parenting classes and that expert report be prepared -- Mother declined to provide Society with records of attendance upon parenting classes, which she did attend -- Expert report was allegedly highly critical of mother's capacity -- Society brought two motions for orders designating children Crown wards for purpose of adoption -- Motions were granted and self-represented mother's appeal to Divisional Court was dismissed -- Mother attempted to file application for leave to appeal to Court of Appeal, but leave documents were rejected and time for leave application expired -- Society then proceeded to notify Crown of leave time expiry and to place both children with adoptive families -- Mother brought motion for extension of time to bring application for leave to appeal -- Motion dismissed -- Mother established intention to appeal throughout, and had made significant efforts to proceed with appellate process -- Society's decision to proceed with adoption of children with significant dispatch was concerning, although valid reasons for proceeding in such way may have been present -- However, notwithstanding mother's intent to proceed throughout and above-noted concerns with Society adoption process, leave to appeal lacked reasonable probability of success -- This was so because on record mother had been uncooperative and unwilling to permit Society to access, inter alia, records of mother's attendance upon parenting classes -- Furthermore, expert report was comprehensive and had been fully adjudicated upon in multiple proceedings including those before Divisional Court -- Proposed leave application had no reasonable likelihood of success, and accordingly leave to extend time was not properly granted in present case.

Children's Aid Society of Ottawa v. N. (S.) (2012), 2012 CarswellOnt 11275, 2012 ONCA 590, E.E. Gillese J.A. (Ont. C.A. [In Chambers]) [Ontario]

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

Classification Number: XX.1.c

Costs -- In family law proceedings generally -- Discretion to award

Applicant father was successful at trial, on issue of having children live with him rather than respondent mother -- Father claimed entitlement to costs, including full indemnity costs from date of offer to settle that was more favourable to mother than trial outcome -- Mother cited her financial situation as reason to limit costs under court's discretion -- Costs submissions were made -- Costs awarded to father -- Father was successful party and there was no reason to abandon general principle as to awarding of costs -- Mother was reasonable in bringing her case and conduct of litigation -- Length of trial was equally attributable to both parties -- Mother's financial status was indicator for limiting costs, as she would incur costs to exercise access and this was in best interests of children -- Court used discretion not to award costs on full indemnity basis after offer to settle -- Costs were awarded to father in amount of $15,000.

Markall v. Markall (2012), 2012 CarswellOnt 4983, 2012 ONSC 2402, J.S. Fregeau J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 5186, 2012 ONSC 687, J.S. Fregeau J. (Ont. S.C.J.) [Ontario]









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

Children could not agree on which of them should be responsible for mother's care and management of mother's property after mother was incapable of managing own healthcare and property -- Youngest child C. sought to assume management of mother's property under powers of attorney mother signed one year earlier -- Children claimed C. mismanaged mother's funds for own gain -- Children removed mother from C.'s home and had mother sign new power of attorney -- Earlier power of attorney was found to be invalid because mother was under undue influence of C. -- Newer power of attorney was found to be invalid because mother lacked capacity when they were signed -- Respondent children were named as mother's guardians for personal care and property -- C. was not required to account for funds because C. was not acting under power of attorney and respondents did not meet onus of establishing C. acted dishonestly in management of mother's funds -- C. was successful in having access to mother restored -- C. sought costs -- No costs were to be paid in proceeding -- Costs C. incurred were price C. paid for unwisely persisting in effort to continue asserting financial control over mother -- It would not be fair to require respondent siblings to share those costs.

Nguyen-Crawford v. Nguyen (2012), 2012 ONSC 1337, 2012 CarswellOnt 2924, D.G. Price J. (Ont. S.C.J.) [Ontario]

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

Parties married on June 8, 1991 and separated on January 3, 2003 -- Parties had three children, Q, age 17, L, age 14, and G, age 12 -- In 2005, parties entered into consent order which provided that father would pay child and spousal support to mother -- On March 1, 2010, father quit his job and took new job with lower salary -- In February 2012, father was let go from new job -- At trial, father's claims for reduction of child support and termination of spousal support were dismissed -- Hearing on costs was held -- Mother awarded costs of $12,000 -- Mother was substantially successful at trial -- Neither party behaved unreasonably -- Issues were not particularly complex -- Although father made several offers to settle, they were not as favourable or more favourable than final orders -- Mother had no ability to absorb her own costs -- Father's limited financial resources did not afford him immunity to costs order.

Thompson v. Gilchrist (2012), 2012 CarswellOnt 11319, 2012 ONSC 5154, Timothy Minnema J. (Ont. S.C.J.); additional reasons to (2012), 2012 ONSC 4137, 2012 CarswellOnt 8996, Timothy Minnema J. (Ont. S.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

Applicant father was successful at trial, on issue of having children live with him rather than respondent mother -- Father claimed entitlement to costs, including full indemnity costs from date of offer to settle that was more favourable to mother than trial outcome -- Mother cited her financial situation as reason to limit costs under court's discretion -- Costs submissions were made -- Costs awarded to father -- Father was successful party and there was no reason to abandon general principle as to awarding of costs -- Mother was reasonable in bringing her case and conduct of litigation -- Length of trial was equally attributable to both parties -- Mother's financial status was indicator for limiting costs, as she would incur costs to exercise access and this was in best interests of children -- Court used discretion not to award costs on full indemnity basis after offer to settle -- Costs were awarded to father in amount of $15,000.

Markall v. Markall (2012), 2012 CarswellOnt 4983, 2012 ONSC 2402, J.S. Fregeau J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 5186, 2012 ONSC 687, J.S. Fregeau J. (Ont. S.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

Under equalization order wife was ordered to pay husband $89,502.95 -- It was determined that husband was predominantly successful on issues -- Husband was awarded costs, fixed at $17,000 -- Wife appealed -- Appeal dismissed -- Appeal was abandoned.

Neufeld v. Neufeld (2012), 2012 ONCA 651, 2012 CarswellOnt 11996, Armstrong J.A., Blair J.A., MacPherson J.A. (Ont. C.A.); affirming (2011), 2011 CarswellOnt 14388, 2011 ONSC 6884, D.J. Taliano J. (Ont. S.C.J.) [Ontario]

FAM.XX.5 Subject Title: Family law

Classification Number: XX.5











Costs -- Custody and access

Father unsuccessfully brought motion for variation of access -- Mother successfully brought cross-motion for variation of access and retroactive variation of child support -- Father had sought $2,500 in costs in event that he was successful -- Mother had incurred $6,500 in legal expenses before representing herself at hearing -- Mother was awarded costs in amount of $4,000 on partial indemnity basis -- Amount took into account importance of litigation to parties, result, expectations of unsuccessful party, numerous court attendances, and appropriateness of mother's legal expenses.




Costs -- Custody and access

Effect of offer to settle -- Parties divorced and entered into mediation with respect to, inter alia, custody and access -- Mediation was unsuccessful and mother brought motion for custody of children of marriage with access to father -- Mother served offer to settle above-noted issues, which offer was not accepted -- Application was granted in most respects, on terms less "comprehensive" and in some respects less favourable to father than those proposed in mother's offer -- Mother was entitled to full indemnity costs from date of offer to settle, but no costs prior to date of offer as those were properly deemed costs toward settlement -- Mother's costs were fixed at $11,413.11 inclusive.

Xidis v. Xidis (2012), 2012 ONSC 5203, 2012 CarswellOnt 11375, Thomas A. Bielby J. (Ont. S.C.J.); additional reasons to (2012), 2012 CarswellOnt 8385, 2012 ONSC 3805, Thomas A. Bielby J. (Ont. S.C.J.) [Ontario]



Costs -- Children in need of protection

Disclosure motion -- Child of parents was apprehended, and consent interim Crown wardship order was entered -- Children's Aid Society ("Society") brought application for order of permanent Crown wardship -- Some one year after apprehension of child, application had not been heard due to failure of Society to make full disclosure -- Parents brought application for disclosure order, which was granted on consent -- Parents were entitled to costs of motion -- Bad faith of Society was not established, but significant delays and disclosure obligations generally rendered partial-indemnity costs award appropriate -- Parents' costs of motion were fixed









at $2,000 inclusive, payable forthwith.

Kawartha-Haliburton Children's Aid Society v. H. (K.) (2012), 2012 CarswellOnt 11542, Gonsolus J. (Ont. S.C.J.); additional reasons at (2012), 2012 ONSC 5165, 2012 CarswellOnt 11340, D.S. Gunsolus J. (Ont. S.C.J.) [Ontario]






the canadian abridgment edigests - family law - ontario · 2012-11-06 · the canadian abridgment...

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