Upon separation, pensions are valued differently depending on whether the the owner is retired or not.
A pension right may be treated as a capital asset or income.

Simply put, a pension right for a person who is not yet retired is an entitlement to a future income steam and the present value of that future income stream must be valued as an asset.

After retirement, the pension becomes an income asset.

As an asset, a pension should be included in the calculation of parties’ Net Family Property and consideration should be given for  contingent taxes.

It is often nerve-racking and overwhelming in the days leading up to a Case Conference as such it is important to have some essential knowledge of where you meet your lawyer/where to go, what can happen at a Case Conference and what happens after it is done. You will find useful information all about your upcoming court date in this document.

Where should you meet your lawyer?

Firstly, it is important to understand beforehand where to meet your lawyer on the day of the Case Conference to ease any confusion or delay. You will be able to meet your lawyer on the given day at the prescribed court house (150 Bond Street East, 393 University Ave, or alternative) you will be able to attain information on the main level in regard to the exact courtroom on that day and your lawyer will meet you outside the prescribed court room.

Please arrive roughly a half hour before the given time of the Case Conference to ensure time for parking, attaining specific court room information, and check in. Your lawyer will arrive at least 15 minutes prior to start time.

What is a Case Conference?

The case conference is the most important step in family law litigation. No motion may be heard and no notice of motion may be served until a case conference dealing with the substantive issues in the case has been completed.  Unless there is a situation of urgency or hardship or a case conference is not required for some other reason in the interest of justice.

A case conference held is to allow the litigants and their lawyers to hear a judge’s views on the case at an early stage, before thousands of dollars are spent on motions and other expensive steps. Early airing of the issues promotes early resolution of disputes.

Goals of a Case Conference:

a) Exploring the chances of settling the case:

A case conference allows the parties to understand how far apart they are on the major issues. Central to this is a judge who is willing to explain how he or she sees the law applying to the facts of the case, including any particularly unusual or difficult facts and the way such facts might be perceived at a motion or trial. Often the case conference judge elaborates on a particular point of law, either clarifying or changing one of the client’s previously held views, with the hope of bringing the parties closer to settlement than before.

 b) Identifying the issues in dispute:

Sometimes after a thorough discussion with the judge, the parties realize that what they previously thought was an impassable issue is resolvable. It is also possible that what was once taken for granted as not being in dispute may turn out to be very contentious. A case conference will also entail a frank discussion of the costs and benefits of settling or proceeding, legal fees, stress on the parties, and time commitments involved.

 c) Exploring ways to resolve disputed issues:

A case conference judge proposes realistic and achievable solutions that are acceptable to both parties and is able to reframe an issue so the parties see it and their role in a new light, paving the way for settlement.

d) Ensuring relevant financial disclosure is made:

One of the most crucial functions a case conference judge performs is ensuring that full and complete financial disclosure is exchanged. Without it, a lawyer is unable to properly advise his or her client, which makes settlement impossible.

e) Identifying issues for “expert” evidence:

Since there are very strict rules as to what constitutes an expert and when expert reports need to be served, early identification of any issues relating to experts or proposed experts a party intends to rely on at trial should be discussed.

f) Noting admissions that may simplify the case:

Judges who are good listeners can often get the parties and their lawyers to talk openly about their true underlying motivations, not just their stated legal positions, and can help identify common interests that tend to generate settlement.

g) Setting the date for the next step in the case:

The judge should discuss whether the case conference has been “completed” as required by r. 14(4) of the Family Law Rules (FLR) and, if so, whether a motion or a settlement conference will follow.

h) If possible, having the parties agree to a specific timetable:

Disclosure orders with specific deadlines are vital. If the conference is held before the respondent files an answer, a deadline for its filing should be made. Any amended materials, pension valuations, or home appraisals will all require dates for production and exchange.

i) Organizing a settlement conference or holding one if appropriate:

Usually if the parties agree, a settlement conference date is booked.

A judge must conduct at least one case conference in every case where an answer is filed (r. 17(1)) (FLR). In a child protection case, a case conference may be conducted if a party requests it or if the court considers it appropriate (r. 17(1.1)) (FLR). A case conference is even required for a motion to change an order or agreement under R. 15 (rr. 17(3) and (11)) (FLR).

Orders that can be made at a Case Conference:

The judge may, if it is “appropriate” to do so:

  • make an order for documentary disclosure (R. 19) (FLR), questioning (R. 20) (FLR), or filing of summaries of argument on a motion, set the times for events in the case, or give directions for the next step(s) in the case;
  • make an order requiring the parties or one of them to attend a mandatory information program, a conference conducted by Dispute Resolution Officer, an intake meeting with a court-affiliated mediation service, or a program offered through any other available community service or resource;
  • make an order if it is on consent or unopposed; and
  • on consent refer any issue for alternative dispute resolution.

In addition, if notice has been served, a court may make a final or temporary order at a case conference:

  • relating to the designation of beneficiaries under a policy of life insurance, RRSP, trust, pension, annuity, or similar instrument;
  • preserving assets, either generally or particularly;
  • prohibiting the concealment or destruction of documents or property;
  • requiring an accounting of funds under the control of one of the parties;
  • preserving the health and medical insurance coverage for one of the parties and the children;
  • continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and children.

This is what happened in the case of Bormans v. Bormans Estate, 2016 ONSC 428. The parties in this case separated after a 38 year traditional marriage. There was a court order requiring the husband to pay spousal support. The husband was also to maintain her as the beneficiary of his life insurance policy however, about 4 years later, he stopped making the payments. The wife had very few assets and low income consisting of her CPP disability benefits and the monthly child support.

On his death, his estate was left to his 2 adult children. The court awarded the wife spousal support from the husband’s estate because while she qualified as a dependent under the Succession Law Reform Act, the adult children did not. The husband had a legal obligation to support the applicant.

Thinking of asking for an unequal division of your net family property? Getting an order for unequal division requires you to meet a high threshold. The Family Law Act R.S.O. 1990, CHAPTER F.3 lists the grounds on which a court may make this Order.

Variation of share
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

CITATION: R.A. v. D.P. 2017 ONSC 4622

OSHAWA COURT FILE NO.: 17-1177-00

DATE: 20170731

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE:                 R.A., Applicant

                        and

D.P., Respondent

BEFORE:       The Honourable Madam Justice S. J. Woodley

COUNSEL:   Andreina Minicozzi, for Applicant

Barry Nussbaum, for Respondent

HEARD:        July 28, 2017

ENDORSEMENT

Overview

[1]               The Applicant, R.A. (“R.A”), has brought an urgent motion on an interim and without prejudice basis for an Order that the child B.S.D. (“B.S.D.”), born […], 2011, be returned to her care. Alternatively, the Applicant seeks an order that the child shall reside with the Applicant and the Respondent on a week-on week-off basis.

[2]               The Respondent, D.P. (“D.P.”), has brought a cross motion for sole custody and primary residence of the child with access to the Applicant at his sole discretion. The Respondent further seeks an Order that the Respondent can obtain, maintain, and renew the child’s passports and other government documents without any other signature or consent and seeks production and delivery of all of the child’s original documents from the Applicant.

[3]               Both parties seek costs.

Issues

[4]   Is the matter sufficiently urgent such that the motion should be heard before the case conference?

[5]               In the circumstances of this case what custody, residency and access arrangements are in the best interests of the child B.S.D.?

[6]               Is either party entitled to costs and if so, in what amount?

 

Facts

[7]               The child, B.S.D., was born on […], 2011 to the Applicant’s (now) deceased daughter, N.D. (“N.D.”), and the Respondent D.P. (“D.P.”).

[8]               N.D. is a Canadian citizen and D.P. is a landed immigrant from Chile. The child B.S.D. is a Canadian citizen.

[9]               The child B.S.D. resided with her parents from her birth on […], 2011 until October 24, 2012, when both parents were arrested for weapons and drug offences (possession for the purpose of trafficking MDMA, heroin and cocaine).

[10]           Upon the arrest of both parents the Children’s Aid Society contacted the Applicant R.A. and placed the child in the temporary care of the Applicant R.A..

[11]           The mother, N.D., was granted bail the day following her arrest (October 25, 2012) and by her bail conditions resided at the Applicant’s home subject to conditions, including a condition that she not communicate with the Respondent D.P. except through counsel to prepare a defence.

[12]           The Respondent father remained incarcerated for 15 months until bail was granted. By the Respondent’s bail conditions he was required to reside with his parents in Richmond Hill subject to conditions, including a condition that he not communicate with N.D. except through counsel to prepare a defence.

[13]           During the period of the Respondent’s incarceration the relationship between the Respondent and N.D. ended.

[14]           While the Respondent was incarcerated the Applicant arranged for the Respondent’s parents to enjoy access. When the Respondent was released on bail the Applicant arranged for the Respondent to have access every other weekend and increased access to every weekend when requested.

[15]           The Applicant’s daughter, N.D., died in April of 2017 from a drug overdose prior to resolution of the criminal proceedings.

[16]           Following N.D.’s death, the child B.S.D. continued to reside with the Applicant and the Respondent continued to enjoy weekend access visits.

[17]           The Respondent’s criminal charges are scheduled to proceed to trial commencing March 19, 2018. In the interim, the Respondent continues to reside with his parents pursuant to bail conditions.

[18]           On June 30, 2017, the Respondent advised the Applicant that he believed that he would have a better chance of not being deported if B.S.D. were to reside with him.

[19]           On July 3, 2017, when it was time for B.S.D. to return to the Applicant, the Respondent refused to return the child.

[20]           The Applicant attempted to negotiate the return of B.S.D. but the Respondent refused and further refused to allow the Applicant to have any access or contact with the child.

[21]           On July 11, 2017, the Applicant commenced an application and brought a motion on an urgent basis set for July 17, 2017, for return of the child.

[22]           Following issuance of the application and service of the motion the Respondent permitted the Applicant to have a five minute telephone conversation with the child on July 14, 15 and 16, 2017.

[23]           On July 17, 2017, the parties attended before the Honourable Justice Timms at which time the Respondent served and filed his responding materials in the form of a counter motion.

[24]           The Applicant obtained a brief adjournment to file a response and the motion and counter-motion were adjourned to July 27, 2017.

[25]           Justice Timms granted a without prejudice order requiring the Respondent to return the child to the Applicant by 4:30 p.m. on July 17, 2017, until Tuesday July 25, 2017 at 4:30 p.m.  A case conference was set for August 8, 2017. Costs were reserved.

[26]           The motion and counter-motion returned to me on July 27, 2017.

The Law

“Best Interests” Test: Children’s Law Reform Act

[27]           The test for determining an application for interim custody or access is always: “What is in the best interests of the child?”

[28]           The court is required to take into consideration only the best interests of the child as determined by reference to the “condition, means, needs and other circumstances of the child.”

[29]           Under section 24(2) of the CLRA, in determining what is in the best interests of a child, the court, must consider all the needs and circumstances of the child, including:

  1.   the love, affection and emotional ties between the child and,
  2.                                                                 each person entitled to or claiming custody of or access to the child,
  3.                                                               other members of the child’s family who reside with the child, and

iii.      persons involved in the care and upbringing of the child;

  1.   the child’s views and preferences, if they can reasonably be ascertained;
  2.   the length of time the child has lived in a stable home environment;
  3.   the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  4.   any plans proposed for the child’s care and upbringing;
  5.   the permanence and stability of the family unit with which it is proposed that the child will live;
  6.   the ability of each person applying for custody of or access to the child to act as a parent; and
  7.   the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[30]           Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. (See s. 24(4) of the CLRA; and Gordon v. Gordon (1980), 23 R.F.L. (2d) 266 (Ont. C.A.)).

Child’s Blood Ties vs. Importance of Psychological Parent

[31]           Although courts have determined that “absence any evidence that parents are behaving in a way that demonstrates an inability to act in accordance with the best interests of their children, a parents’ right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances” – such considerations apply only where the parents are custodial parents and a non-custodial party seeks access. Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman2001 CanLII 24015 (ON CA)Parkins v. Parkins2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier2006 BCSC 2020 (CanLII); Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth[2000] O.J. No. 1452 (ON SC).

[32]           Although a child’s relationship by blood is a relevant consideration – there is no “parental right” to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth[2000] O.J. No. 1452 (ON SC)Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61 (CanLII), [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

[33]           The court must consider the best interests of the child including the psychological needs of the child and the child’s attachment to each party. (SeeMoores v. Feldstein1973 CanLII 535 (ON CA), [1973] 3 O.R. 921 (C.A.)).

Status Quo

[34]           Our courts have traditionally given a great deal of weight to the arrangements that are actually in place at the time of the court’s determination of the issue, be it at the interim stage or the final stage.

[35]           Generally, courts are reluctant to change existing child care arrangements that are working to a child’s benefit. (See N.(M.) v. B.(M.) (2000), 2000 CanLII 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[36]           The preference for maintaining the status quo emphasizes the primary caregiver’s importance to a child. Where a child lived in the de facto custodial care of her grandparents for two years and all of her needs were met including stability and consistency, it was appropriate to maintain the status quo and grant the grandparents temporary custody. (See D.(S.) v. D.(M.P.), [2001] W.D.F.L. 78 (Q.B.); Perchaluk v. Perchaluk[2012] O.J. No. 3988, 27 R.F.L. (7th) 479 (Ont. C. J.).

[37]           A judge is unlikely to change ongoing child-care arrangements that meet a child’s needs simply because the other parent claims that he or she can also care for that child. (See Longergan v. Longergan, [1998] W.D.F.L. 332 (B.C.S.C.).

[38]           However, if the ongoing arrangements do not meet a child’s needs, a court will change custody. (See Boyko v. Purdue, [2001] B.C.D. Civ. 360.35.10.90-04 (S.C.); A.A. v. S.N.A., 2007 BCCA 363 (CanLII), [2007] B.C.J. No. 1474, A.A. v. S.N.A., [2007] B.C.J. No. 1475 (B.C.C.A.).

[39]           In deciding the weight to be accorded to the status quo, a court may take into account that the current child-care arrangements were wrongfully acquired or were only intended to be temporary. While doing so may discourage wrongful removal of children or prevent a parent benefiting from wrongdoing, it is difficult to see how such considerations are relevant to the best interests of an individual child. (See Brooks v. Brooks, supra).

Proposed Change in One Parent’s Home

[40]           The onus is on the parent who seeks a change existing child care arrangements to prove that it is in the best interests of a child to do so. (SeeTubello v. Tubello (2000), 2000 SKQB 276 (CanLII), 8 R.F.L. (5th) 451 (Sask. Q.B.).

Possibility of Deportation

[41]           In situations where there is a possibility of one parent being deported, the parties are not entitled to obtain Orders for custody and access that may have the effect of frustrating the deportation process without notice to the Minister of Immigration as this would allow an unacceptable use of the family law system to frustrate the deportation process and would be contrary to public policy.  (See Patterson v. Osazuma, [2005] O.J. No. 4370, 2015 ONCJ 454 (Ont. C.J.) (CanLII).

Analysis

Urgency

[42]           Pursuant to the Family Law Rules a person who wants to bring a motion is not entitled to have the motion heard prior to a case conference unless the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

[43]           An urgent motion contemplates issues such as abduction, threats of harm, and dire financial circumstances. Prior to bringing an urgent motion the parties should enquire into the availability of a case conference and engage in settlement discussions. (See Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (Ont. S.C.J.); Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (Ont. S.C.J.)).

[44]           The child had been withheld from her usual place of residence on June 30, 2017. The Applicant attempted to resolve the matter before coming to court without success and although a case conference date was obtained it is not scheduled until August 8, 2017. While the withholding of the child may not constitute an abduction, given the withholding and the failure to provide any access to the Applicant, the circumstances warrant that an urgent motion be brought and heard by the court.

Was the Applicant the Caregiver to the Child – Determination of Status Quo

[45]           The Respondent argues that the Applicant was not the primary caregiver to the child – that N.D., prior to her death, was the primary caregiver, and the Applicant provided a home as surety for N.D.. The Respondent argues that upon the death of N.D., that he as the surviving parent had a prima facie right to custody of the child.

[46]           The Respondent submits that his decision to allow the child to remain in the Applicant’s care for two months following N.D.’s death did not establish any status quo in favour of the Applicant but was reflective of responsible parenting by allowing the child to finish the school year at her then current school.

[47]           The Respondent submits that he cannot prove that the Applicant did not act as primary caregiver as this would put him in the impossible position of proving a negative. However, the Respondent submits that the Applicant did not provide sufficient evidence to establish on the balance of probabilities that she (the Applicant) was the primary caregiver and/or co-parent of the child from October 24, 2012 to June 30, 2017.

[48]           The Respondent submits that as the Applicant was not the caregiver for the child no status quo was established. In the circumstances the Respondent submits that he is prima facie entitled to custody and primary residence and any access to the Applicant is at his discretion.

[49]           In furtherance of his position the Respondent relies upon the Court of Appeal decision of Chapman v. Chapman2001 CanLII 24015 (ON CA) as well as the following decisions Parkins v. Parkins2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier2006 BCSC 2020 (CanLII).

[50]           The Applicant submits that she has been the primary or joint caregiver for the child since October 24, 2012 and that the status quo is that she has had de facto custody and primary residence of the child since that date.

[51]           The Applicant states that the test for determination of access and custody on a temporary basis is the best interests of the child as set out at s. 24(2)of the Children’s Law Reform Act.

[52]           The Applicant argues that when considering the best interests of the child the fact that the Respondent is the biological father is only one consideration. The court is required to consider all factors and reach a determination on the basis of the overall best interests of the child keeping in mind the considerations noted at s. 24(2) of the CLRA.

[53]           As a starting point, the Applicant submits that she has been the primary and/or joint caregiver for the child since October 24, 2012, and the status quo is that she has had de facto custody with the Respondent having weekend access. The Applicant argues that the case law favours continuation of the status quo pending trial.

Review of Evidence Establishing Caregiving Roles and Status Quo

[54]           I have had an opportunity to thoroughly review the affidavits filed by the Applicant and note the following evidence was provided regarding the care and custody of the child B.S.D.:

  1.   The Applicant has been in the child’s life since her birth and has “been her primary caregiver” since October 24, 2012;
  2.   CAS called the Applicant to care for B.S.D.. Ever since that happened, the Applicant has  had custody and been the primary caregiver of B.S.D.;
  3.   From October 24, 2012 to June 30, 2017, the Respondent was prohibited from communicating with N.D. and despite his assertions the Respondent had no discussions with N.D. concerning any custody or access issues;
  4.   The Applicant and N.D. made the decision to send the child to a French Immersion School;
  5.   The Applicant has made ongoing custodial decisions for the child such as: getting her baptized, enrolling her in daycare, enrolling her in Catholic school for junior kindergarten, choosing her dentist, and family doctor;
  6.   The Applicant enrolled the child in summer camp, St. James Catholic School, and the Rainbows programs as she “always had the ability to make such decisions without the need for the Respondent to consent”;
  7.   the Applicant has fully cared for the child since she was 16 months old and shared parenting responsibilities with N.D. with her sole concern being B.S.D.’s  best interests;
  8.   Since October 24, 2012 the primary caregiver of B.S.D., for the most part, has been the Applicant’s sole responsibility;
  9.     On a regular school day, N.D. would drop B.S.D. off to school, and the Applicant would pick B.S.D. up (as she had to be at work at 7:30 a.m.). After school the Applicant was responsible for feeding, bathing, and putting the child to bed. The Applicant was also responsible for taking B.S.D. to her doctor and dentist appointments, and to all school events;
  10.     The Applicant never denied access to the Respondent. When the Respondent requested increased access to every weekend the Applicant did not oppose the increase as she wanted what was in the best interests of the child; and
  11.   Since N.D.’s death, the Applicant has taken sick leave from work until September 2017. Additionally the Applicant has made arrangements to work from home commencing in September 2017 to properly care for the child on a full-time basis.

[55]           The Respondent has denied the Applicant’s claims and stated that he, together with N.D., made important decisions for B.S.D. together, including the decision to enroll B.S.D. in a French Immersion school. Despite the Respondent’s claim in this regard I note that the Respondent was subject to bail conditions that prohibited such communication. I have difficulty accepting this evidence.

[56]           The Respondent stated that since B.S.D. has been in his primary care (June 30, 2017) he has continued to make important custodial decisions such as enrolling her in a summer day camp program. The enrollment is dated July 10, 2017, after the date that the child was withheld from the Applicant and after the Respondent had been contacted by the Applicant’s lawyer.

[57]           The Respondent states that he is B.S.D.’s primary caregiver. However, the Respondent works on a full-time basis and provided no examples of any caregiving provided by him to the child.

[58]           The Respondent stated that he attempted to discuss a parenting regime with the Applicant after N.D.’s death but the Applicant refused to participate in the discussion. Upon review of the messages I note that it was the Respondent’s mother who was communicating with the Applicant. There is no attempt by the Respondent to communicate with the Applicant.

[59]           Having reviewed the evidence I accept that the Applicant has acted in a caregiving role as the primary or joint caregiver of the child since October 24, 2012. I further accept that the status quo has been that the Applicant has had de facto custody of the child either solely or jointly with N.D. since October of 2012 and the Respondent has exercised regular access.

Best Interests of the Child

[60]           Having reviewed and considered the provisions of s. 24(2) of the CLRA I find that it is in the best interest of the child to remain in the de facto custody of the Applicant pending determination of the Respondent father’s criminal proceedings that are set to occur in March of 2018.

[61]           My decision regarding the best interest of the child took into account the considerations noted above which establish the status quo and also include:

  1.   The Applicant has cared for the child since October 24, 2012;
  2.   The Applicant has provided security and stability for the child amidst the uncertainty of her parents’ criminal proceedings;
  3.   The Applicant took a leave of absence to care for the child following the death of her mother, arranged for grief counselling, arranged for special schooling and summer camp – and made all such arrangements PRIOR to the commencement of any legal proceedings in the ordinary course of caring for the child;
  4.   The Applicant arranged with her employer that she could work from her home and placed the child’s interests before her own;
  5.   The Applicant has a certain future while the Respondent’s future remains unsettled and uncertain pending determination of his criminal proceedings;
  6.   The Applicant has never denied the Respondent access to the child and has encouraged the relationship so that the child may know her father – thus evidencing concern for the best interest of the child;
  7.   The Respondent withheld the child on July 3, 2017, denied the Applicant access, and only agreed to telephone access after the Applicant’s lawyer became involved thus evidencing concern for his own legal position over the needs of the child; and
  8.   There is a real possibility that the Respondent may be incarcerated and/or deported following his criminal trial in March of 2018. It is unduly disruptive to disrupt the status quo until the Respondent’s future and his ability to care for the child on a full-time basis has been determined.

 

 

Determination of Motion

[62]           As noted above in all of the circumstances of this case I find that it is in the best interests of the child to remain with the Applicant pending determination of the Respondent’s criminal proceedings which are scheduled to be commenced on March 19, 2018.

[63]           In the circumstances I hereby order on a temporary without prejudice basis as follows:

  1.   The Applicant R.A. shall have primary residence of the child B.S.D., born […], 2011, pending determination of the Respondent’s criminal proceedings scheduled to commence on March 19, 2018;
  2.   The Applicant R.A. shall make all decisions concerning the health, welfare, education, and leisure activities (including schooling, camps and counselling services) for the child B.S.D.. The Applicant shall keep the Respondent D.P. advised of any activities that the child is enrolled and shall consult with the Respondent on all major educational and medical decisions provided that in the event of a disagreement the Applicant shall have the final decision making ability;
  3.   Subject to the provisions of the temporary interim Order dated July 27, 2017, the Respondent D.P. shall have access to the child each weekend from Friday at 4:30 p.m. to Sunday at 4:30 p.m.;
  4.   The Respondent D.P. shall have further generous access to the child for holidays, special events, birthdays, as agreed upon between the Applicant and the Respondent, acting reasonably, such access to be agreed upon in writing; and
  5.   The Costs of the motion are hereby fixed at $3,000.00 payable by the Respondent to Applicant within 60 days of the date herein.

Justice Susan J. Woodley

Released: July 31, 2017

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Did you know that voluntary retirement before the age of 65 may not qualify as a material change?

A material change must be found before a support order will be varied. Also, while retirement may qualify as a material change in some cases, the courts will compare the current income of the person paying support to the income amount that was used to establish the original support order. If there is no difference, a court may find that there has been no material change.

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Spousal Support

The research is organized by the following:

  • General guidance for locating where on the range of spousal support should be
  • Case law for wife not working full time where she has the ability to

Guidelines for locating range on spousal support

Chapter 9 of the SSAG provides considerable guidance on location within the range, setting out a non-exclusive list of factors to assist in determining the location within the range for both amount and duration:

  • the strength of any compensatory claim
  • recipient’s needs
  • age, number, needs, and standard of living of children (if any)
  • needs and ability to pay of payor
  • work incentives for the payor
  • property division and debts
  • self-sufficiency incentives[1]

In considering the duration of a spousal support award, the court should order a duration closer to the upper end of the range so as to allow a recipient spouse to transition toward a reduced post-separation standard of living, where that spouse’s circumstances are more difficult compared to other dependent spouses who are either better educated or who secure permanent employment.[2]

Strength of any compensatory claim

The strength of the compensatory claim is often mentioned as a factor, whether strong or weak: Brown v. Brown, 2013 NBQB 369 (non-compensatory claim only, low end of range); Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 (strong compensatory claim, sole caregiver); Ross v. Ross, 2010 BCSC 52 (wife maintained qualifications during marriage, able to find full-time work, weaker compensatory claim); and Barry v. Barry, 2009 NLUFC 13 (weaker compensatory claim, stronger non-compensatory claim, below mid-range).

Recipient’s needs

The depth of need can be a strong non-compensatory factor pushing amount higher in the range: Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, need of the wife, between mid and high range). Lower housing costs for the recipient can reduce “need” and pull a court lower in the range, where the recipient is living in a mortgage-free home or pays reduced rent: Guignard v. Guignard, 2011 ONSC 7078 (wife living in rent-geared-to-income housing).

The recipient may also require training or education to improve their earning capacity, a factor which will push the amount higher in the range for a period of time, e.g. Jones v. Hugo, 2012 ONCJ 211.

The payor’s ability to pay can be affected by debt payments: Guignard v. Guignard, above; S.D. v. J.D., 2012 NBQB 237. The payor’s cash flow may be seriously affected by mandatory pension contributions, which should be taken into account in most instances by location in the range: Hari v. Hari, 2013 ONSC 5562; and Macey v. Macey, 2013 ONSC 462.

 

Age, number, needs, and standard of living of children

No details provided.

Work incentives for the payor

Work incentives for the payor are frequently mentioned in the cases: Reid v. Carnduff, 2014 ONSC 605 (mid-range, transportation costs for commute to work); Chapman v. Chapman, [2010] O.J. No. (S.C.J.) (husband’s income dependent on how hard he works, low end of range for work incentives); Savoie v. Savoie, 2009 NBQB 134 (lower than mid-range); and Lalonde v. Lalonde, [2008] O.J. No. 4507, 2008 CarswellOnt 6710 (S.C.J.) (significant overtime included in payor’s income, low end).

Property division and debts

Property division can influence location, mostly at the extremes. A large property settlement gives the spouse security and capital to fall back upon, likely leading to an amount lower in the range: Cochrane v. Cochrane, 2013 BCSC 2114 (strong compensatory claim, but large property, low end). Or, conversely, if there is little property to be divided, support can be higher in the range.

Some specific factors have emerged, that are not explicitly listed amongst those in Chapter 9 of the SSAG, but that can be important in determining the location in the range:

  • High access costsH.F. v. M.H., 2014 ONCJ 450 (husband returned to Bermuda); Jardine v. Jardine, 2013 NSSC 30 (high transportation costs for access, split custody);  S.D. v. J.D., 2012 NBQB 237 (custodial payor, husband pays all costs of supervised access by wife); Gibson v. Gibson, [2009] O.J. No. 4172 (high access costs after wife’s move from Thunder Bay to Elliot Lake, husband making payments on line of credit, lower end of range); Graham v. Wilson, [2009] O.J. No. 1432, 2009 CarswellOnt 1866 (S.C.J.)(travel for extensive weekend access, low end); Novlesky v. Novlesky, 2009 BCSC 1328 (wife moves back to Brazil, high travel costs, low end); Spikula v. Spikula, [2008] O.J. No. 3931 (S.C.J.)(costs of shared custody, low end).
  • High medical costs: S.J.M. v. J.L.M., 2010 BCSC 154 (wife’s extra medical, drug and dental costs after divorce, upper end of range).

Self-sufficiency incentives

No details provided.

Case law for wife not working full time where she has the ability to

 Case summary

Shorey v. Shorey, [2009] O.J. No. 5136, 2009 CarswellOnt 7514 (S.C.J.)

Ratio:  where it is difficult to impute income to a recipient, but a court believes she or he could earn more, the judge may go lower in the range

Summary:

The Applicant wife and the Respondent husband started living together in 1988, married in 1989 and separated in 2005. The Applicant worked full-time as a dental hygienist for two years of the marriage. Subsequently, the Applicant maintained a part-time position as a dental hygienist at the same office, working just 3 days a week. The Respondent made $114, 581.00 with $9, 560.96 as overtime.

The Applicant said she could not work full-time because she had neck and back problems.

The Respondent suffered from bladder and prostate cancer.

The court stated that having reviewed the Applicant’s ability through own admission, the Court imputed income of $38, 000.00 to her for spousal support calculations.

How it applies to S. v. S.

Ms. S. is claiming she cannot work, however, the Court can determine her ability to work without an expert report, and impute a potential income for the purposes of spousal support calculations.

[1] Spousal Support Advisory Guidelines, www.justice.gc.ca, §3.4.1.

[2] Bourque v. Bourque (2008), 2008 CarswellNB 601 (N.B. Q.B.)

Paper by: Athena Narsingh

The value of assets owned on the date of marriage is important for equalization/division of net family property, following separation.

Alimony

When seeking an Order for spousal support (alimony as it is sometimes referred to), it is important to know in what court you will be asking for the relief.

For example, if you have already gotten a divorce outside of Canada, you cannot bring a claim for spousal support in a Superior Court as the Superior Court does not have the jurisdiction to order spousal support when the parties have already received a divorce outside Canada.

Also, the Ontario Court of Justice does not have the jurisdiction to hear a proceeding where a party is asking for spousal support under the Divorce Act, if the parties have obtained a divorce outside of Canada.  The case of Okmyansky v. Okmyansky, 2007 ONCA 427 is the binding authority on this subject.

While a person may seek spousal support under the Family Law Act, it also cannot be done if the parties obtain a divorce outside Canada.  Section 30 of the Family Law Act (FLA) provides that:

“Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.  R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).”

This section refers only to spouses and not to former spouses.  A Spouse under Part III of the FLA is defined as follows:

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”)  R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30; 2016, c. 23, s. 47 (1).”

Therefore, former spouses are not entitled to claim support under the FLA.

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As of April 28, 2017, the condition that forced couples to live together for 2 years to maintain their permanent residency was removed.

What was the condition P.R. card holders had?

The old condition was introduced to citizens wishing to sponsor their partners in 2012. This condition stated you had to live with one another at least two years if, at the time you applied your relationship was less than two years and if you had no children together. This meant that if the couple realized before 2 years of living in Canada together, that they were not meant for each other the sponsored spouse may be forced to give up their residency or would be subject to a removal order. Now, upon arrival you will hold full permanent residency without conditions.

Why was the condition put in place?

This condition was put into place in efforts to eliminate marriage fraud and persons seeking to immigrate to Canada through marriage. However, by putting so much focus on these issues the government acknowledged that not only did it lack trust in Canadians- but issues may arise by forcing couples to cohabit for 2 years. A sponsored spouse may feel obligated to stay in a relationship with their sponsor to protect their residency even if they are experiencing feelings of unhappiness and at times abuse.

What now?

Couples that hold the same citizenship go through rough times in their relationship where it causes them to separate– so why shouldn’t two people that happen to have different citizenship be able to? With this condition being lifted it will allow the relationship between you and your significant other to grow naturally. Sometimes the pressure of making a relationship work because of all the legality behind it diminishes the reason two people decide to be with one another.

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Transcript – Blog Video – Partition & Sale of the Family Home

My name is Angela Princewill and I would like to talk to you about partition and sale of the matrimonial home.

You might be experiencing a situation where your partner is not agreeing to buy out your interest in the home and is also not agreeing to the home being put up for sale.

It might seem like there is no way out and today we want to talk to you about an option that is available to you under the Partitions Act which can compel your partner to put up that home for sale or otherwise buyout your interest in the property.

According to the Partitions Act, so long as you have an interest in a property, whether it is a legal or equitable interest, you have a right to seek that that property be partitioned and sold. The partition is so that your interest in the property can be divided—separated so to speak—from your partner’s and you can get whatever value that you seek for your portion of the property.

The key factors to know is that the property has to be situated in Ontario; it also does not matter whether or not you have legal title to the property. In other words, you may not be on title to the home and you would still have this remedy available to you.

If all options for negotiation have been exhausted, you need to bring an Application to court and make sure to check the box that you are asking for the sale of the matrimonial home. The court will grant that order except where there are compelling reasons why the home should not be partitioned and your share sold off.

It is very fact based and the court will look at each case based on its merit. There have been different reasons that we have seen in our practice as to why people have raised the issue of why it is not appropriate for the home to be sold or partitioned.

If it is not going to affect the other person’s interest negatively—when we say negatively, we do not simply mean there will be no negative impact at all, the other side may have an interest in holding on to the property for whatever reason and a partition and sale might negatively affect them—the court will likely grant the order. But it will be very fact based.

At the end of the day, your job is to make sure that you present it to a judge to see that whatever factors or reasons that the other side is presenting for not putting up the home for sale, that they are not good reasons and are not sufficient reasons to block you being able to get value for your interest in the property.

The partition and sale of a matrimonial home can get quite technical. It is generally not requested under the Family Law Act, even though there are some provisions there that speak to this. It generally can only be compelled under the Partitions Act.

But the take away from this video is to know that there are options. You do not always have to wait for the other side to consent and as always it is best to approach things from a negotiation perspective.

But if those are falling through, do not feel all hope is lost and that perhaps because you are not on title to this property that you do not have any remedy.

Realize that so long as that property is in Ontario that you do have an interest in the property, whether it is a legal interest or an equitable interest, that there is a remedy to you to be able to get value for that interest.

I hope this is helpful to you. You can refer to the Partitions Act as well as the Family Law Act of Ontario, or you can give us a call or send us an email.

We would be happy to show you how those specific provisions of the Act may be applicable in your case.

www.aprincewill.com | 905-492-7662 | info@y-canada.com

The processing time of many Canadian work permits is set to be dramatically cut by Immigration Citizenship and Immigration Canada (IRCC) with the introduction of its ‘Global Talent Stream’. Launching on June 12, 2017, this fast-track application stream will see IRCC process many temporary work permits within two weeks, down from the current processing period of up to 6 months.

This new Global Talent Stream forms part of the Canadian Government’s Global Skills Strategy announced last year to assist Canadian companies acquire the unique skills sets needed to help grow existing businesses and start-ups. A Global Talent List of eligible occupations for fast-tracked processing is currently being developed by IRCC in consultation with labour market experts and key stakeholders. As part of the Government’s broader Global Skills Strategy, skilled foreign nationals will also be able to work in Canada on a short-term basis (such as 30 days or less in a year) without first applying for a work permit, with the same concession being extended to brief stays for visiting academics.

The Canadian Minister of Innovation, Science and Economic Development, Navdeep Bains, in announcing the upcoming fast-track application stream, declared “[w]e want to be open to ideas, open to people, open to trade, open to investment.” This openness will ultimately see Canadian companies being able to employ the skilled temporary workers they need much faster than previously has been the case. Also in attendance at the announcement, the Canadian Minister of Employment, Workforce Development and Labour, Patty Hajdu, confirmed this adding, “[o]ur government’s Global Skills Strategy will give employers a faster and more predictable process for bringing in top talent and new skills to Canada.”

Many of these temporary workers may though not be temporary for long, as explained by Faith St-John from CIC. “As workers with in-demand skills and Canadian work experience, they will be well-positioned to successfully apply for permanent status through Express Entry if they choose to do so.” For ultimately as she notes, “with an aging population and a relatively low birth rate, Canada’s economy relies on a robust immigration system to help keep our workforce strong.”

With March Break just around the corner, you might be getting ready to plan trips outside of Canada. When traveling with children, you should be aware of what you might need. Although not a legal requirement, if children are traveling alone, with relatives, or with one parent, then the Government of Canada strongly recommends that you have a consent letter.

A consent letter is a document signed by parents or guardians who are not accompanying the child stating that the child has permission to travel abroad. A consent letter does not guarantee entry into or exit from a country, as every country has its own entry and exit requirements, the letter protects your child’s safety.

If you are a parent of separation or divorce with shared custody or access, and you are traveling alone with your child, the other parent should sign the consent form. If you have sole custody of your child, you should carry any agreements or court orders indicating you have sole custody. If your child is adopted or you are the guardian, you should carry the legal documents indicating such.

If your parenting arrangements have special terms governing international travel, the Government of Canada recommends you seek legal guidance to ensure you are compliant with your agreement.

If you need a consent letter template, you can download it here.

Have a great March Break with your children.

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