The landmark decision in Ahluwalia v Ahluwalia 2022 by Justice Renu Mandhane of the Ontario Superior Court of Justice created the tort of family violence in family law. This was a ground-breaking decision because it has important implications for survivors of intimate partner violence throughout the province. This case involved a 17-year traditional marriage of the parties. At trial, the judge assessed damages at $150,000: $50,000 for each of compensatory, aggravated, and punitive damages. The husband disputed the amount of award, and he raised objection to the novel tort in family law.
The parties were married in 1999 and had two children during their marriage and later separated in 2016. The father immigrated to Canada in 2001, and the mother and child arrived the following year. The husband was a lawyer, and the wife was a teacher in India. The parties later had another child in Canada. When the parties settled, they lacked the financial resources to get their foreign credentials accredited in Canada. The parties worked in factory and retail jobs to make ends meet.
According to the wife’s evidence the parties’ relationship was characterized by a pattern of emotional and physical abuse and financial control. This was not disputed by the husband on appeal. The trial judge found that the husband was abusive during the marriage. The wife had testified to three specific incidents of physical violence in 2000, 2008 and 2013.
On July 7, 2023, the Ontario Court of Appeal released its decision in the case. The court acknowledged the existence of intimate partner violence in this case but rejected the creation of the tort of family violence. The court held that when remedies already exist, a new tort is not required. The court held that existing torts when properly applied, addressed the harm suffered in domestic relationships. The Court of Appeal also reduced the damages from $150,000 to $100,000 by eliminating the award for punitive damages.
In Ahluwalia, the Court of Appeal clearly recognized that intimate partner violence is a “pervasive social problem.” The ruling represents a milestone in the evolving legal landscape surrounding tort claims in family law proceedings. It clarified the boundaries of the law, and the appropriate remedies that are available to victims of family violence.
Victims of domestic violence have the option to ask the family court for a restraining order against their partners if there are safety concerns for them or their children. The restraining order will list conditions that the abuser must obey. If the abuser does not follow the conditions of the restraining order, it will be contempt of court and the abuser will face consequences. A judge can ensure that a restraining order lists conditions that are suitable for the victim’s unique situation to protect the victim from the abuser.
A no-contact order is another kind of legal order that is sometimes imposed on a person by a court. No-contact includes all forms of contact, including in-person, by telephone and by email. A person under no-contact order is not allowed to contact the person, usually the victim and sometimes her family or friends named in the order.
While a peace bond is an order given by the criminal court that requires a particular person to be mindful and keep the peace for the duration of the peace bond order. It ensures that the person maintains good behaviour for the duration of the order. These orders are subtle in differences but are designed to protect victims and their families.
In Ontario, victims can call Victim Support Line to get financial assistance and receive access to support for critical needs such as emergency home safety expenses and short-term counselling services. There are other platforms that provide similar assistance such as Assaulted Women’s Helpline, Fem’aide Support, Kids Help Line, Male Survivors of Sexual Abuse Crisis Line and Victims Support Line. These helplines are operated 24 hours a day.
Ontario network of sexual assault/domestic violence treatment centres is funded by the Province of Ontario and has 37 treatment centres across the province dedicated to provide comprehensive, trauma-specific care and treatment to victims and survivors of sexual and domestic violence.
If you’re a victim of family violence, don’t suffer in silence. Get the supports you need.
Remember that not all circumstances in a divorce are the same and that not all parties separate amicably. Often separating parties find it difficult to mutually agree on decisions about children. If the children are at the center of the divorce battle, then several decisions are required to be made. For instance, where the parties will meet to exchange the children or whether a previously agreed-to location can be changed.
A parenting coordinator is a neutral third party brought into family law cases to reduce the level of conflict between parents about parenting arrangements or parenting orders. Under the Family Law Act, parenting coordinator is an alternative dispute resolution process. Generally, they may be family law lawyers, social workers, counsellors, or psychologists. For many high-conflict cases, the parenting coordinators have accomplished assisted parents with making decisions that are difficult to make on their own. For instance, they assist parents with the successful implementation of the parties’ parenting plan. If there is a dispute with respect to the parenting plan, the parenting coordinators will try to mediate an agreement between the parties. Parenting coordinators employ a child-focused method of alternative dispute resolution used in high-conflict cases.
What is defined as a high-conflict custody case?
This is a situation where the parents cannot agree on decision-making responsibilities and parenting time arrangements. This includes when parents cannot agree on the children’s best interests, lack communication, and are unable to make mutual decisions regarding the children. The legal process in a high-conflict parenting case is usually long and complicated. Allegations of domestic violence, child abuse, and alienation are common in high-conflict cases. In these cases, both legal and mental health practitioners agree that early intervention and assessment by the courts are necessary.
In some instances, parents are unable to let go of the spousal relationship and use parental issues to try to hold on to it. Sometimes one parent may use the parenting arrangement as a way of maintaining or exerting control or of exacting revenge. Frequent court applications and lengthy affidavits requiring responses may be used to punish and exhaust the other parent emotionally and financially. One or both of the parties may still be very emotionally engaged. Where there is an eruption of marital conflict, children may lack confidence and become hesitant to move forward or may move forward in a dysfunctional way. See Jackson v Jackson (2008) CanLii 3222as this case provides an excellent review of the literature on high-conflict divorce.
How does a parenting coordinator get involved?
Judges can appoint parenting coordinators, or former partners can choose them. Judges cannot order parenting coordinators without the consent of the parties. If the relationship between the parties are difficult, especially in terms of communication and cooperation then it makes sense for the parties to accept the parent coordinators’ involvement.
If you have questions or concerns about how to navigate your family law case, please get in touch with us for more information and speak to one of our experienced Family lawyers in Pickering, Markham, Toronto, or Scarborough. You can call us at (905)-492-7662 or email us at [email protected] to schedule a consultation.
It’s scary to think of anything going sideways. Simply thinking of the unimaginable makes us feel like something bad could happen. And yet, we do. That’s why we get insurance – for our car, our homes and even ourselves. We want to make sure we’re protected. However, when it comes to relationships, we hate to think that it could possibly end.
“Our love is eternal”
“We promised to grow old together”
“He/She’s my soulmate”
“We’re destined to be”
While you tell yourself this, you might find yourself reminded of others who have said the same and who are now filing for divorce.
Of course, there’s no saying that your relationship would come to that. It could thrive. It could last your lifetime. And I pray yours does.
In fact, a handful of couples have made it work – kudos to them- however, relationships won’t always turn out the way we want or expect them to.
And while you might not see it now, having a Marriage Contract or Cohabitation Agreement is something you might want to consider before you commit to living together from here on out.
The Marriage Mindset
We want our love to last forever. And while we should all strive to fight for that, we also don’t know what the future holds.
A marriage contract is there to secure you and your partner’s properties and assets if ever things go south. Of course, the goal is to never have to get to that point but then again, you never know.
In fact, if you get a marriage contract, you can just get it and forget it.
So, what’s the point of it then?
If you truly love your partner, you’d have everything set in writing while you can still amicably come to an agreement on things. Also, many people fail to realize that there are unintended consequences to not having a marriage contract at all.
Let’s say that you only want what’s yours or you’ve planned to just shares things if it does come to it, leaving it to the default means you leave it up to the provisions of the law and it may not be what you or your partner intended.
The Unintended Consequences
Now, what could these unintended consequences be?
Although a ton of things come to mind, primarily, the main consequences you should wish to avoid are changes in the provision of the law in regard to marriage and how marriage affects your own personal assets, achievements and income moving forward.
Of course, this involves quite a broad range of things, which is why I’d like to discuss three of the most misconstrued myths behind the division of properties during divorce.
This house is under MY Name before Marriage
Regardless of how much you put towards your home, even prior to marriage, even if it is under your name, it is considered conjugal. The same could be said of other properties and assets acquired before and after your marriage.
That said, if the matrimonial home was initially purchased by you, even with the downpayment being covered solely by you, in the eyes of the law you will still be splitting it 50-50.
Many make the mistake of thinking they’d get a deduction because they put more towards the home than their partner, however, that is not the case. In fact, when it comes to the matrimonial home title it does not matter.
My Partner Used to Earn More and Can Still Earn More
Despite how responsible and financially capable you or your partner may be now, you never know how the tides may turn. You may be the low-income earner or the high-income earner at one point in another during your relationship, and this is fine so long as you are together.
However, in separation, spousal support tends to be very draining especially if things turned out for the worse. It could be that your partner, being the former breadwinner, cheats, turns to drugs, might go into a life crisis of some sort and you end up being the greater-income earner in your relationship at the date of separation.
In this case, more often than not, where the lower-income earner becomes the high-income earner, the now greater-income earner does not want to pay spousal support, and of course, for good reason. Yet no matter the cause of the role reversal, the lower income-earner during the date of separation is entitled to spousal support from the higher income earner.
Of course, there is an entitlement threshold, but most of those who have experienced this scenario say that had they known it would happen they would have organized their affairs differently.
Getting Back Inheritance spent on the Marriage
Another thing we have to look at is your inheritances.
Although inheritance is considered separate property, belonging exclusively to the inheritor, if you decide to put it to use towards your marital assets such as using it on your matrimonial home or depositing it into a joint bank account, it automatically becomes subject to division if you do decide to separate even if your intention was to simply temporarily sustain or improve your shared household during the time it was used.
What if these scenarios don’t bother me at all?
The point of a marriage contract is to be intentional with your future. Even if you aren’t concerned with these unintended consequences, it’s always best to put that into writing this way both you and your partner have a written agreement you can turn to if ever it comes to that. Of course, you could always change the terms in the future, however, at least it would be on your terms rather than leaving it up solely to the law to decide.
This way, both you and your partner have a say as to who gets to keep what and what is considered as yours or your partner’s throughout the course of your marriage.
Separation and divorce are difficult processes for everyone, but it can be challenging to face a reality in which your former spouse or partner has a new partner, especially if this new partner is entering the lives of your child(ren).
If a new partner is growing to be a significant part of your child(ren)’s life, it’s healthy to find a positive way to approach co-parenting with this new individual in the mix. An amicable approach would be the ideal way to handle the situation. It may be hard to acknowledge that your child(ren) feels affectionate towards your co-parent’s new partner but remember that you and your co-parent will always be your child(ren)’s mom or dad. If you can recognize that this person has your child(ren)’s best interest at heart, then support this positive relationship. It is great for your child(ren) to have plenty of healthy support systems in their life. Consider them an extra set of listening ears and an extra set of hugging arms when your kids need support, and you can’t be there.
It is always important to keep the child(ren)’s best interest and needs at heart. Even if this new partner isn’t your favorite person, approach in a polite manner because causing meritless challenges will only impact your child(ren)’s well-being. There is no exact law on how to introduce new partners to your child(ren); parties should act reasonably and consider the best interests of the child(ren). By setting this co-parenting boundary, it will promote positive interactions, and cheerful life experiences to help your child(ren) succeed.
Be advised, this can be a confusing time for your child(ren) with all the changes they may feel internal pressure not knowing how to react. It is incredibly important that the co-parent’s partner is introduced to the child(ren) carefully with a proper plan. Essentially, provide the child(ren) with reassurance that your new partner is not replacing their other parent and being mindful not to overstep boundaries.
If you do have concerns about your co-parent’s new partner, address the concerns to the other parent directly or speak with a family lawyer or mental health professional specializing in post-separation dynamics if there are challenges. On the other hand, if you are the co-parent with the new partner and you feel overwhelmed about the situation, seek professional help to you navigate this tricky situation.
Here are a few tips for setting co-parenting boundaries:
1. Open communication with your ex-partner;
2. Aim for consistency in co-parenting;
3. Prioritize your child(ren)’s best interest;
4. Resolve co-parenting disagreements;
5. Set your own boundaries if required; and
6. Evaluate your own emotional and mental health
I always liked Good Luck Charlie. I mean it’s no That’s so Raven or Hannah Montana but still, I remember being so excited to watch this show every time it came on. I remember when Spencer cheated on Teddy, I felt like I was the one who was heartbroken. Great show.
For the non-90’s babies, the older 90’s babies and the non-Disney channel watchers, let me give a breakdown of the show. Main character is Teddy. She’s a 15-year-old girl dealing with high school, friends, boys, driving and all the other regular teenage things. She has an older brother and a younger brother. Her parents decided to have another baby, Charlotte a.k.a. Charlie. Teddy then decided to document her life and make videos for Charlie to be able to refer to when she is older. At the end of the videos which usually occur at the end of the episode, she always says “Good Luck Charlie” hence the name of the show. It’s not a bad show at all and it actually still holds up. I refuse to confirm or deny if I have watched episodes of the show recently.
Why is a children’s show featuring in the Cut blog? Who could possibly be getting divorced on Disney? I mean Carrie from Suite life comes to mind. Also, Phineas and Ferb, we were actually never told about Phineas and Candace’s birth father and Ferb’s birth mother. Come to think of it, no parenting time was ever sought by the parents so what was that about?
Okay. None of that is relevant. Let’s get back on track. The reason that this show is being featured in the Cut blog is not for divorce. Family law is not all about separation, sometimes we are there for the inception too. *ahem* inserts plug about how you should retain AP Lawyers for your marriage contracts.
The reason that this is being featured is interesting. So after four children, a mortgage etc, Teddy’s parents, Amy and Bob decided to go on a skiing trip. On this trip, they find out that they were not actually married. Apparently, Judge Lawson, the person who married them was some kind of con man who did fake marriages all the time. They did not realize this at the time, obviously so they thought they were married.
If this had happened in Ontario, what would the courts have done? Luckily, we can look to the case of Swinden and Crowell. It is almost exactly what happened in Good Luck Charlie. In that case, the parties were married but apparently, the Reverend was not qualified to marry them. The Reverend in this case was not a scam artist, she genuinely thought she could marry the parties Now they were looking for a declaration that they were married.
In Swinden, the court held that four elements must be applied for a marriage to be deemed valid under the Marriage Act:
1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act;
3. Neither party was under a legal disqualification to contract marriage; and,
4. The parties must have lived together and cohabitated as a married couple after solemnization.
For the first element, I believe the marriage between Amy and Bob was solemnized in good faith. They fell in love, got married and had children. For the second element, I am sure they intended to comply with the Marriage Act of the state that they lived in (Colorado, apparently). Again, we are looking at this as if it happened in Ontario so we assume that yes they did intend to comply with the Marriage Act. For the third, as far as we know, there is no legal disqualification. Off the top of my head, a legal disqualification could be if either person was at that time married to someone else. This would disqualify them from marrying another person as bigamy is not allowed in Ontario. As far as we know, this is not the case. For the final element, Amy and Bob have lived together as a married couple. They own a home together and have 4 children (they eventually have a fifth).
Amy and Bob fulfill all the grounds so likely an Ontario Court will hold that they are still married. They did end up getting married again at the lodge but if this was in Ontario, it would likely have been unnecessary.
Decision-making responsibility (formerly called “custody”) is an important aspect of family law in Ontario. When parents separate or divorce, they may be required to make decisions together about the care and upbringing of their children. Decision-making responsibility is the right to make major decisions about your children. Some of these major decisions include:
3. Religion; and
4. Extra-curricular activities.
Decision-making only relates to making major decisions about your children. It does not include who your child[ren] lives with or how much time a parent spends with the child[ren].
Types of Decision-Making Responsibility
Sole decision-making responsibility refers to one parent retaining the right to make major decisions regarding the upbringing and well-being of their child[ren]. Sometimes, the sole decision-making parent may be required to consult with the non-decision-making parent. In the event of a disagreement, the parent retaining sole decision-making will have the final say on the issue.
Joint decision-making responsibility refers to where both parents make major decisions regarding the upbringing and well-being of their child[ren]. If parties are seeking joint decision-making responsibility, it is vital that they demonstrate an ability to communicate and cooperate with each other to serve the best interest of their child[ren].
It is important for parents who share decision-making responsibility to communicate effectively and work together to make decisions in a timely and efficient manner. This can help reduce conflict and ensure the child’s needs are met. In some cases, it may be necessary to seek the assistance of a family law lawyer to help navigate the complex issues that can arise in shared decision-making situations.
Parallel decision-making responsibility occurs when one parent is responsible for some major decisions, for example, health and religion, and the other parent is responsible for other decisions, for example, education and extra-curricular activities.
A party needs to carefully assess which method is appropriate in their circumstances in light of the child[ren]’s best interest. For example, as stated above, if the parties are able to communicate and cooperate well with each other, joint decision-making responsibility may be a feasible option. On the other hand, if there is a power imbalance or poor communication, then perhaps sole or Parallel decision-making responsibility may be a better option.
If the parents are unable to agree on a decision, they may need to seek the assistance of a mediator or, in extreme cases, attend court to resolve the issue. In court, the judge will consider the best interests of the child[ren] when determining the issue of decision-making responsibility.
Best Interest of the Child
In Ontario, the best interest of the child[ren] is the guiding principle in family law cases that involve child[ren]. The law recognizes that the well-being of the child[ren] is of utmost importance and that all decisions must be made with the child[ren]’s best interests in mind.
When making decisions about children in family law cases, the court will consider several factors to determine what is in the child’s best interest. Some of the factors that the court may consider include:
1. The child’s needs, given their age and stage of development;
2. The nature and strength of the child’s relationship with each parent, sibling, grandparents, and any other person who plays an important role in the child’s life;
3. Parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
4. History of care of the child;
5. The child’s views and preferences;
6. The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. Any plans for the child’s care;
8. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. Any family violence and its impact on, among other things,
The ability and willingness of any person who engaged in family violence to care for and meet the needs of the child; and
the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
11. any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security, and well-being.
In addition to these factors, the court may consider any other relevant factors that could affect the child’s well-being.
It’s important to note that the child’s best interest is not just a consideration in court cases. Parents who are making decisions about their child[ren] outside of court should also consider the best interest of the child[ren]. This can include decisions about where the child[ren] will live, how the child[ren] will be raised, and how the child[ren] will be educated.
Ultimately, the best interest of the child[ren] is about ensuring that the child[ren]’s needs are met and that the child[ren] can thrive. By putting the child[ren]’s needs first, parents can work together to create a safe and nurturing environment for their child[ren], even in the midst of a family law dispute.
If you are going through a separation and you, your spouse, or your children, live in Ontario, then you may be wondering how child support works and what your rights and obligations are. In this blog post, we’ll provide a basic overview of the child support system in Ontario. Read on to learn more!
How is Child Support Calculated?
The amount of child support that is owed will depend on factors such as the income of each parent and the number of children involved. The Canadian government has set up a standard calculation for calculating child support payments called the Federal Child Support Guidelines. This calculation takes into account both parents’ incomes, in shared parenting arrangements so if one parent earns more than the other, then they may be required to pay child support even though the children live with the parties equally.
If the children live primarily with one parent, then that parent, then the parent alone pays child support in the amount prescribed by the guidelines. That is, the parent with whom the children live will primarily be the child support recipient while the other parent will be the payor.
In addition to the Federal Guidelines, each province also has its own guideline. The Ontario Child Support Guidelines mirror the Federal Child Support Guidelines.
What Are My Rights and Obligations?
As a parent or caregiver to a child in Ontario, you have certain rights and obligations when it comes to paying child support. Most importantly, you have an obligation to make sure your children receive adequate financial assistance from both parents after divorce or separation. You also have a right to request revisions to the current child support amount, generally on an annual basis, if there has been a change in a payor’s income.
As a payor, you have an obligation to provide up-to-date disclosure about your income on an annual basis so that support can either be increased or decreased based on your income. If you fail to provide accurate financial disclosure regarding your income, you may be faced with significant child support arrears if your income has increased over the years. If your income is reduced over the years, you may lose the ability to reduce child support retroactively.
The above is a very basic overview of child support. The issue can become complicated when issues such as calculating parenting time, determining income, or undue hardship get thrown into the mix.
Remember that your full and accurate income disclosure is essential. The starting point is always the child support guidelines. Your parenting arrangement makes a difference as to how much child support you have to pay and If you are self-employed or own a business, the issue may not be so straightforward.
Lastly. child support is the right of the child. Be very careful before entering into agreements waiving child support as you may be required to back pay child support starting from the date of separation if the other party changes their mind. As always, independent legal advice is imperative. All the best!
These expenses refer to section 7 of the Child Support Guidelines (the “Guidelines”) which speaks to the provision of child support in addition to the usual monthly table child support. According to the Guidelines, section 7 expenses are discretionary and can be ordered by the court on a party’s request. In ordering a spouse or parent to pay these expenses, courts will consider (i) if the expense falls within one of the enumerated listed expenses, (ii) the necessity of the expense in relation to the child’s best interests, (iii) the reasonableness of the expense in relation to the means of the parents or spouses and those of the child, and (iv) the spending pattern of the parents or spouses in respect of the child during cohabitation.
Types of section 7 expenses – special or extraordinary expenses
According to the Guidelines, the following are expenses that a parent or spouse could claim under section 7:
childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;
that portion of the medical and dental insurance premiums attributable to the child;
health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
expenses for post-secondary education; and
extraordinary expenses for extracurricular activities
Distinction between extraordinary and special expenses
The Guidelines further provide a two-part definition of what constitutes an extraordinary expense (to differentiate this from a special expense). Extraordinary expenses can mean expenses that exceed those that a parent or spouse can reasonably cover, considering their income and the amount of child support they would receive. Extraordinary expenses can also refer to expenses that the court considers to be extraordinary taking into account:
the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive in child support,
the nature and number of the educational programs and extracurricular activities,
any special needs and talents of the child,
the overall cost of the programs and activities, and
any other similar factors that the court considers relevant.
Extraordinary expenses are concerned with the cumulative financial impact of the expenses on the parent or spouse, rather than single expenses at a time—special expense. Regardless of whether an expense is special or extraordinary, all expenses under section 7 must be proved to be necessary and reasonable by the party claiming them.
Courts consider all factors before ordering Section 7 expenses
A parent or spouse claiming a section 7 expense has the onus of proving each element of the expense to the court as defined above.
In Costescu v. Costescu (2014 ONCJ 218) Justice Curtis stated that the onus to prove a section 7 expense was on the parent seeking contribution for that expense. She further intimated that the party claiming the expense had to demonstrate that it was reasonable and necessary.
In Bhupal v. Bhupal (2013 ONSC 60) the parties were married for 16 years and had one child. The respondent, the father, who had an annual income of $313,000 initiated variation proceedings seeking, inter alia, the elimination of section 7 expenses related to nanny expenses. The court held that the expense of the nanny was not necessary to allow the applicant to work and was not an allowable section 7 expense. The court ordered that the respondent was no longer required to contribute to the cost of the nanny.
In understanding the difference between an application and a motion to change in family law cases, it is imperative to start with basic definitions.
What is an Application?
An application is how family court cases are initiated. Rule 8 (1) of the Family Law Rules provides that to start a case, a person shall file an application in the prescribed form. In an application, an individual involved in a family law dispute can make a claim against more than one person; and more than one claim against the same person. An application sets out: (i) the issues that a judge is asked to resolve; (ii) the applicant’s relationship to the respondent; (iii) details about any children from the relationship; (iv) and any other facts relied on to support the application.
What is a Motion to Change?
A motion to change is the court process used when a person, who is a party in an already commenced family court case, wants to ask a judge to:
1. change or end a final family court order, or
2. change or end an agreement to pay support.
Rule 15 (5) of the Family Law Rules provides that a party who wants to ask the court to change a final order or agreement shall serve and file a motion to change in the prescribed form, with all required attachments.
A motion to change is used to vary or end final orders of the court as they relate to:
· support payments,
· decision-making responsibility,
· parenting time, or
· a restraining/non-harassment order.
Applications initiate the process in family court cases, whereas motions to change are utilized to vary or end a final family court order or an agreement to pay support in an already commenced family court case.
The Exception – When Required to Proceed by Motion
Despite what has been stated above, there are situations when parties in family law cases are required to proceed by motion instead of an application. Rule 8 (1.2) of the Family Law Rules provides that the party entitled to enforcement under a family arbitration agreement shall make a motion in that case rather than an application.
If you have had a family law matter involving retroactive child support, depending on how long ago it was, you have probably heard of D.B.S. v. S.R.G. 2006 SCC 37 (”DBS”) and more recently, Michel v. Graydon 2020 SCC 24 (”Michel”). Both DBS and Michel are Supreme Court of Canada decisions.
Recently, the judgment was released for Henderson v. Micetich, 2021 ABCA 103 (Henderson). This case is significant because the court reviewed DBS and Michel and provided direction going forward on this very important issue of retroactive child support.
In Henderson, the parties cohabited from 2002 – 2009. They had 2 children. When they separated, the parties came to an oral agreement whereby the father would pay $800 a month in child support based on his income at the time. He also had parenting time with the children every other weekend.
The mother remained in 2009 to a partner who earned a much higher income and consequently, she and the children were afforded a comfortable lifestyle.
In 2018, the father sought more parenting time and the mother counter-claimed for child support retroactive to January 2018. In the same year, the father made a consumer proposal to deal with his approximately $430,000 in personal debt. His debt was reduced to $42,000 and he paid $700 monthly towards it.
The motion judge refused to order retroactive support, basing his decision on the factors outlined by the Supreme Court in DBS. The decision in Michel had not been released at the time. One issue with this decision was the mother was actually not claiming retroactive support, so DBS should not have applied. Any support obligation from January 2018 when the father started the court process is NOT retroactive child support.
The court also reviewed the various DBS factors and interpreted them in light of Michael and found that:
A) Delay would rarely prejudice a payor parent because the payor knows or ought to know that his or her child support obligation should be calculated based on his or her line 150 income, adjusted annually. Given the Payor has the information advantage in this scenario, and in light of other social and economic factors, delay has a very limited role to play in the analysis.
B) The court rejected the idea that subjectively, the payor ought to have thought he or she was doing something wrong for them to be engaging in blameworthy conduct. The court said even failure to disclose an increase in income is blame worthy conduct.
C) The court also stated that there was no requirement to prove need on the part of the children. Child support is the right of the child and children are entitled to expect and receive child support from both parents.
D) With respect to hardship, the court held that there is usually financial difficulty when immediate lump sum cash payment is awarded but without more, it is neither undue nor unfair, because the payor has in fact benefitted from failing to fulfill his or her support obligation.
The court allowed the mother’s appeal and directed the father to pay $24,408.90 in support arrears, payable in monthly installments. The father’s ongoing child support payments were also increased to $1,662.
The lesson here is to be mindful of the importance of paying the correct table amount of child support, based on the child support guidelines. If there are reasons for paying less than the table amount of child support, be sure to articulate it and be sure that it benefits the child/children. Remember, child support is the right of the child. Also, do not count on the passage of time, the receipt’s delay, lack of blameworthy conduct on your part, lack of need on the part of the children, or your financial hardship to play any part in eliminating or reducing your retroactive child support obligation.
Child Support, while having very fixed and specific rules can simultaneously also be one of the more complicated issues in a family law case. Retroactive child support especially.
The recent Supreme Court of Canada decision in Michel v Graydon looks to answer some looming questions and provide clarification. Payor parents need to understand the importance of the recent case. Even If the child has reached the age of majority, and is now financially independent, child support obligations that existed in the past are not automatically dissolved. The Supreme Court case concluded that retroactive child support may still be payable, even after the child is no longer a child.
Ms. Michel and Mr. Graydon were in a common law relationship. They had one child of the relationship namely, AG. After the separation, the parties entereda consent order and Mr. Graydon was ordered to pay the Child Support based off his annual income of $40,000.00. After several years, Ms. Michel discovered that the father was lying about his true income and sought retroactive child support. The child, however, was an adult and no longer considered a ‘child of the marriage’.
The trial judge ordered Mr. Graydon to pay retroactive child support as he his real income which negatively impacted the quality of life that AG lived. Mr. Graydon was ordered topay $23,000.00 in retroactive child support.
The decision was overturned at the appeals court where the court held that it was too late to order Mr. Graydon to pay retroactive child support as the child was now a financially independent adult.
The Supreme Court of Canada (SCC) unanimously held that Mr. Graydon has an obligation to pay retroactive child support even if the child was now an adult and independent.
DBS v SRG, 2006 SCC 37.
The decision in Michel v. Graydon, builds upon the framework laid down in DBS v SRG, 2006 SCC 37.
In DBS, the SCC considered s. 15.1 of the Divorce Act:
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
In the court’s view, 15.1 meant that the court could not award child support unless the child is a “child of the marriage” when the application is made.
In Graydon, the SCC concluded that such restrictions should not and cannot apply the same way to S. 152 of the British Columbia Family Law Act or S. 17 of the Divorce Act (variation of existing support orders).
152 (1)On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.
The SCC concluded that section 152 of the FLA lets the court retroactively vary a child support order, regardless of whether the beneficiary is a ‘child’ and regardless of the fact that the Order has expired.
Principles governing child support:
• Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);
• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
• The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45).
• Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
• Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5).
The SCC concluded that child support is the right of a child that cannot be negotiated away. In this situation and similar situations, retroactive payment is fair.
The court further stated that the entirety of the situation at hand needs to be considered when deciding to make an order for retroactive child support. This means considering why the parent waited to ask for support, the behaviour of the payor parent, the child situation and whether hardship was caused. Mr. Graydon knew his income was greater than what he had stated, thus he knew that he was paying child support that was less than the amount he should be paying. As a result, it should not be a surprise to him that he must pay more child support now. Moreover, Mr. Graydon was aware of the poo living situation for Ms. Michel and AG and instead of helping her, he made disrespectful and hurtful comments.
Many payor parents that may have thought that they can escape their child support obligations once the child reaches an adult age and is independent will need to reconsider that thought. Moreover, any payor parent that has considered attempting to hide income and pay less in child support hoping to ‘beat the system’ will also be facing a difficult situation in the future as a result of Graydon.
The Graydon case has helped provide more clarity on the idea of retroactive payment of child support once the child is an adult or when the support payments have ended. It largely reinforced the principles underlying child support as they stand. It is not a question of whether retroactive child support is appropriate, rather a question of why retroactive support is NOT appropriate.
Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office – but they have no choice.
In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.
There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.
Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationshipwith one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Toronto today! We also serve our clients in Markham, Scarborough and Pickering.
Many parents are under the misconception that child support ends when their child turns 18 or even graduates from high school. However, that is not always true. If your child chooses to pursue post-secondary education, you could still be required to make child support payments. But how does it work if my child chooses to live on campus or away from home for college or university? This is a much-debated topic and it really comes down to the facts of the situation.
Under the Federal Child Support Guidelines, a child could still be considered a “child” for the purposes of child support even if they are living on their own in post-secondary school.
According to paragraph 3(2) of the Federal Child Support Guidelines:
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
I want to focus on two different types of support payable when a child is in post-secondary school. There is the standard monthly child support payable (Section 3) and the special and extraordinary expenses that are payable (Section 7). Sometimes, these payment obligations continue even past the child’s first diploma or bachelor’s degree and until they are self-sufficient.
When a child chooses to live on campus or away from home for their post-secondary school, the standard monthly child support may not be appropriate for the child and the Federal Child Support Guidelines acknowledges that. As lawyers, we look for key factors when it comes to this. These factors include:
the child’s age;
full time or part time education;
viable career options;
plans for post-secondary education made when the parents were still together;
what post-secondary funding would have looked like if the parents were still together;
other sources of funding for the child;
ability of the child to contribute towards their own education;
type of program the child wants to pursue;
child’s grades and future plans;
child’s attendance record;
where the child is living; and
any other contribution method applied for such as loans bursaries, scholarships etc.
The burden of providing this info usually falls on the parent who is claiming child support, also known as the recipient.
The Federal Child Support Guidelines have terms that reflect that the needs of an older child in post-secondary school differs from that of a younger child. In addition, the recipient parent would not have the same expenses for that child if they choose to live away from home for school. Although, it is noteworthy that the recipient parent would still have carrying costs of the home to pay for even when the child has moved away because it is expected that the child would come home to visit, come home for the summer and holidays.
It is reasonable for the monthly amount of child support payable to the recipient parent to decrease from the table amount of child support while the child is living away from home for post-secondary school. At the same time, it can sometimes also be reasonable for the paying parent to only pay for the summer months when the child is back to residing at home with the recipient parent.
This situation can become complicated because of the circumstances of the situation. It is best to speak to one of our experienced family law lawyers to help you navigate through the system and case law to make sure that you are fully informed and are proceeding the best way possible.
Every family law matter that goes to court starts with a Case Conference. In some matters, the parties start with a Rule 39 (First Court Date) which sets out the date for the Case Conference.
The Case Conference is a very important step in a family law matter because it is the first opportunity to present the case to the court and obtain their views. It also is an opportunity to see strengths and weaknesses in a case and how to advance with it.
Based on the type of originating process that has been commenced in court, sometimes Case Conferences are before a Judge and sometimes they are below a Dispute Resolution Officer (DRO). Please see the below chart for the type of application and who your Case Conference will before:
Type of Application
Judge or DRO
Initial Application for family law matter
MOTION TO CHANGE
Court Application for the purpose of changing or varying an existing Order or Agreement
Dispute Resolution Officers are senior family lawyers who have a wealth of knowledge and years of experience in family law practice to assist with moving the case along, settlement and negotiations. They act as a neutral third party and assist with resolving matters in certain instances before they are heard in front of a Judge for another Conference or a Motion.
DRO’s are only available in certain family courts including Toronto, Brampton, Milton, Newmarket, Barrie, Hamilton, and Oshawa.
Both a DRO and a Judge can assist the parties in identifying and attempting to resolve their issues, ensuring all relevant documents have been disclosed, and, if the parties are able to agree on resolution to some issues, assisting them in obtaining a consent order from the court
Having a Case Conference before a Judge can have similar benefits of a DRO Conference and sometimes a more enhanced one given that you receive the views and opinions from a Judge for the rest of your case. Sometimes, the Judge you before become your Case Management Judge and can assist you in the resolution of issues sooner.
The main difference between a DRO Case Conference and a Judge Case Conference are the powers of the court. A DRO cannot make orders regarding your case or any costs but a Judge can make certain orders such as procedural ones, ordering steps in a case, costs, etc.
At AP Lawyers, our family lawyers regularly appear before DROs and Judges in both the Ontario Court of Justice and Superior Court of Justice for family law matters. We can assist you in identifying how to maximize on the type of Conference that is scheduled for your matter.
Back to school for children means a new adjustment for families.
For children of separated parents, this could become a very stressful time.
Pickups, drop-offs and who can attend school events can become contentious issues. Even where the children would attend school can become an issue.
Here are our top 3 tips to survive these first days of school.
1) Parents need to remember that the most important factor in any decision regarding children is what works best for the children, not necessarily what is most convenient for the parents, but what works for the child.
The convenience of the parents would play a role, no doubt. Happy parent = happy child but every decision must be viewed through the lens of what is in the best interest of the child.
2) Parents should maintain a flexible position regarding custody and access.
A few minutes late for pickup here, a little early for drop-offs there may be annoying but think about it. In the grand scheme of a cooperative parenting regime, is it worth creating a huge conflict?
Longer delays are a different issue of course. Even switching access days to accommodate the other parent seeing the children to ask about the first day of school if possible could be fantastic for the kids.
3) Take a deep breath. Scheduling may not be perfect right now but with time, a lot of the glitches would smooth out.
Negotiation, mediation, and litigation remain available tools to resolve any lingering conflicts.
So, go out, enjoy these last few days of summer, and help the kids settle into the new school year. We wish you the best!
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.
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
BEFORE: The Honourable Madam Justice S. J. Woodley
COUNSEL: Andreina Minicozzi, for Applicant
Barry Nussbaum, for Respondent
HEARD: July 28, 2017
 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.
 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.
 Both parties seek costs.
 Is the matter sufficiently urgent such that the motion should be heard before the case conference?
 In the circumstances of this case what custody, residency and access arrangements are in the best interests of the child B.S.D.?
 Is either party entitled to costs and if so, in what amount?
 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.”).
 N.D. is a Canadian citizen and D.P. is a landed immigrant from Chile. The child B.S.D. is a Canadian citizen.
 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).
 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..
 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.
 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.
 During the period of the Respondent’s incarceration the relationship between the Respondent and N.D. ended.
 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.
 The Applicant’s daughter, N.D., died in April of 2017 from a drug overdose prior to resolution of the criminal proceedings.
 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.
 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.
 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.
 On July 3, 2017, when it was time for B.S.D. to return to the Applicant, the Respondent refused to return the child.
 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.
 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.
 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.
 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.
 The Applicant obtained a brief adjournment to file a response and the motion and counter-motion were adjourned to July 27, 2017.
 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.
 The motion and counter-motion returned to me on July 27, 2017.
 The test for determining an application for interim custody or access is always: “What is in the best interests of the child?”
 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.”
 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:
the love, affection and emotional ties between the child and,
each person entitled to or claiming custody of or access to the child,
other members of the child’s family who reside with the child, and
iii. persons involved in the care and upbringing of the child;
the child’s views and preferences, if they can reasonably be ascertained;
the length of time the child has lived in a stable home environment;
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;
any plans proposed for the child’s care and upbringing;
the permanence and stability of the family unit with which it is proposed that the child will live;
the ability of each person applying for custody of or access to the child to act as a parent; and
the relationship by blood or through an adoption order between the child and each person who is a party to the application.
 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
 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. Chapman, 2001 CanLII 24015 (ON CA); Parkins v. Parkins, 2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020 (CanLII); Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth,  O.J. No. 1452 (ON SC).
 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,  O.J. No. 1452 (ON SC); Jones v. Smith,  O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61 (CanLII),  O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC),  O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).
 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. Feldstein, 1973 CanLII 535 (ON CA),  3 O.R. 921 (C.A.)).
 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.
 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.).
 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.),  W.D.F.L. 78 (Q.B.); Perchaluk v. Perchaluk,  O.J. No. 3988, 27 R.F.L. (7th) 479 (Ont. C. J.).
 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,  W.D.F.L. 332 (B.C.S.C.).
 However, if the ongoing arrangements do not meet a child’s needs, a court will change custody. (See Boyko v. Purdue,  B.C.D. Civ. 3126.96.36.199-04 (S.C.); A.A. v. S.N.A., 2007 BCCA 363 (CanLII),  B.C.J. No. 1474, A.A. v. S.N.A.,  B.C.J. No. 1475 (B.C.C.A.).
 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
 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
 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,  O.J. No. 4370, 2015 ONCJ 454 (Ont. C.J.) (CanLII).
 Pursuant to the Family Law Rulesa 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.
 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),  O.J. No. 62 (Ont. S.C.J.); Hood v. Hood, 2001 CanLII 28129 (ON SC),  O.J. No. 2918 (Ont. S.C.J.)).
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.:
The Applicant has been in the child’s life since her birth and has “been her primary caregiver” since October 24, 2012;
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.;
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;
The Applicant and N.D. made the decision to send the child to a French Immersion School;
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;
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”;
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;
Since October 24, 2012 the primary caregiver of B.S.D., for the most part, has been the Applicant’s sole responsibility;
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;
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
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.
 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.
 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.
 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.
 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.
 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
 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.
 My decision regarding the best interest of the child took into account the considerations noted above which establish the status quo and also include:
The Applicant has cared for the child since October 24, 2012;
The Applicant has provided security and stability for the child amidst the uncertainty of her parents’ criminal proceedings;
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;
The Applicant arranged with her employer that she could work from her home and placed the child’s interests before her own;
The Applicant has a certain future while the Respondent’s future remains unsettled and uncertain pending determination of his criminal proceedings;
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;
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
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
 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.
 In the circumstances I hereby order on a temporary without prejudice basis as follows:
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;
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;
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.;
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
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.
We may not realize it, but children are more observant than they seem. When children start to see their parents fighting, it has a major impact on their mental health, as well as long term and how they perceive relationships to be. One thing parents need to make sure about when going through a separation or divorce is that the children are away from the conflict and do not become messengers or therapists for the parents.
Not only is it unhealthy for the children and can affect their learning and development, but the courts strongly frown upon the children being involved in any conflict between parents. The adult issues that arise from separation need to be dealt with by adults and not have the children dragged into the battle and listen to what is going on.
Here are a few tips and judges rules for separated parents:
Do not use the children to relay messages to the other parent or to deliver child support or spousal support
Do not say bad things about the other parent or talk down about the other parent in front of or to the children
Do not make the children feel that they have to choose one parent over the other
Parents need to make sure that the children know they are loved by both parents and shall encourage the children’s relationship with the other parent
Do not ask the children to keep secrets or to use the children as spies
Do not question the children unreasonably about their time spent at the other parent’s home
One point I cannot stress enough is do not make the children feel that they have to pick one parent over the other parent. This can happen easily by saying bad things about the other parent and no child should ever hear their parent speak that way about the other. The children need to know that both parents love them equally and that they would both do anything for them.
Children, although observant, are fairly sensitive and sometimes feel that the separation or conflict is caused by them. This can happen easily with them overhearing conversations, observing the parents fighting, or simply from the parents telling them too much information about the separation. A child should never feel that they are at fault for the breakdown of the relationship and that is why it is so important not to involve the children in the conflict. Make sure to keep any conversations pertaining to the separation between adults, with no children around.
In the end, the children are not the ones who are there to be the messengers and mediators and by letting them get involved with the conflict, it only creates a more negative and unhealthy environment for all parties involved. The best way to help keep the conflict away from the children is by seeking legal advice and letting the professionals deal with the issues, rather than involving the children.
Our family law lawyers at A. Princewill Law Firm aim to keep conflict to a minimum and make the separation process as easy as possible for everyone, especially the children. Let us help you.
What happens when you fail to pay support? Well, you could get thrown in jail that’s what.
In the case of Ontario (Family Responsibility Office) v. Adema, 2016 ONCJ 37, Justice Sherr committed the payor who happened to be a lawyer to jail for 75 days or until he paid $3,500 per case towards arrears (there were two cases where support was owing by the same payor).
He had been given multiple opportunities to deal with the issues but failed to follow through. He did not bring a motion to change and other measures such as suspending his licence and passport did not work. The judge was disappointed that a lawyer acted in such a manner.
Whoever you are, the message is clear. There will be consequences for non-payment of support.
Do you have support arrears? Do you believe you should be paying less support or that support should be terminated? Do you want arrears wiped out? The legal team at A .Princewill Law Firm can help you.
Retroactive child support refers to claims for child support for a period preceding the commencement of proceedings.
So when we talk about retroactive child support, we are referring to child support owing for a period prior to you bringing an application seeking child support.
Here’s a scenario that happens all too often. Parents separate and the child is residing primarily with one parent. For whatever reason, the parent that the children resides with does not receive child support from the other parent.
Years pass by and the parent who the resides with the child has been asking for support over time & here you are a few years later wondering what is going on? Am I going to get any support for all these years that I have been providing for all the children’s financial needs?
The answer in an in a nutshell is yes. The court can order payment of child support retroactively. The court will consider the following factors:
1) the reason for the delay in seeking support
2) the conduct of the party who is to pay the support – is there any blameworthy conduct?
3) the child’s past and present circumstances
4) hardship that will result to the parent who is to pay the support retroactively
The courts will also consider how far back it should go in awarding child support and this will be based on the date of effective notice. Effective notice is the date you bring the subject of paying child support to the other party’s attention or the day you asked for a review of the amount of support being paid.
Unless there is blameworthy conduct on the part of the party who is to pay support, his or her liability will be limited to no more than 3 years from the date of formal notice. There is a difference between effective and formal notice. As the support recipient has an obligation to move matters along, once effective notice has been given. If there is blameworthy conduct, then the 3year limitation period will not apply.
As a general rule, parents must encourage and facilitate children having as much contact with both parents. This may not always be ideal and that is why all decisions regarding custody and access are made on one standard only – the best interest of the children! NOT the parents’ wishes.
The ability of a parent to care for a child is a consideration in determining the best interest of a child but absent any special dietary concerns, feeding the children candy and junk food in and of itself is not likely to be considered reasonable grounds for withholding access. My advice is – to talk to your ex about this in a non-confrontational way. Maybe have a respected 3rd party such as a mediator help you with it to ensure that your message is communicated properly and that the other party doesn’t feel judged or that you are controlling him or her.
When a relationship ends, a spouse may be required to make child or spousal support payments. Whether support payments are required will depend on a variety of factors, such as income level, number of children, and length of the relationship. The type of relationship may also influence the ordering of support payments. For example, if a married couple is divorcing, the support may be ordered under the federal Divorce Act, while a non-married couple who is separating would have the support dealt with under the provincial Family Law Act.
Parents have an obligation to provide financial support for their children. If there is a separation or divorce, that obligation still remains even if a parent does not have custody of their children. The child support payments fulfill a parent’s obligation to provide financial support to their children.
The amount of child support payable is dependent upon the Child Support Guidelines. The Guidelines calculate the support based on a formula which includes level of income and number of children. In addition to the Child Support Guidelines payments, the court may also order a parent pay an additional amount for special or extraordinary expenses for the child. These expenses may include: child care expenses, health-related expenses or extracurricular activities.
A spouse is not automatically eligible for spousal support when a relationship ends – they must first establish an entitlement. If an entitlement is established, the amount of support is guided by the Spousal Support Advisory Guidelines. These guidelines use two formulas to calculate spousal support: one for if there are no dependent children, and a second if there are dependent children.
While the Spousal Support Advisory Guidelines guide the awarding of spousal support, they are not law, and it is possible that a court may deviate from them. There are several situations where the guidelines may not apply and a court may use their discretion in awarding spousal support.
How We Can Help
The awarding of child and spousal support payments have been standardized to a certain extent by the introduction of the Child Support Guidelines and the Spousal Support Advisory Guidelines, but every family law situation remains different. It is recommended individuals seek the advice of a lawyer for their specific set of circumstances.