The Canadian Abridgment eDigests - Family Law - …...Parties, who had one child, age 4.5, separated...

The Canadian Abridgment eDigests -- Family Law - Ontario

2019-5February 04, 2019

FAM.III.3.c.ii

Subject Title: Family law

Classification Number: III.3.c.ii

Division of family property -- What constitutes property -- Pension benefits -- Miscellaneous

Parties were married in 1984, and separated in 2016, after 32 years of marriage -- Husband was retired fromown business, mother had been retail employee but was currently unable to work -- Largest asset of family washusband’s pension, and property also included matrimonial home and camp property, three automobiles, andother interests -- Wife brought application for divorce, support, and division of family property -- Applicationgranted -- Husband’s pension was property, value of which must be included in his net family property -- Valueof pension not removed from family property -- Maximum transferable amount to be transferred to wife, whichaffected support amounts -- Pension was valued at $681,152 -- As result of divorce wife would not have interestin husband’s survivor pension valued at $91,461.

Martin v. Martin (2018), 2018 CarswellOnt 19157, 2018 ONSC 6804, J.S. Fregeau J. (Ont. S.C.J.) [Ontario]

FAM.III.5.c.vii


Classification Number: III.5.c.vii

Division of family property -- Assets which may be excluded from property to be divided -- Gifts andinheritances -- Ontario

Assets brought into marriage -- Parties, who had one child, age 4.5, married in 2006 and separated in 2015 --Father brought application for equalization of family property and other relief -- Application granted -- Partieswere entitled to deductions for pre-marriage assets in amount of $19,036.12 for father and $5,000 for mother --Gifts mother received from parents during marriage were not excluded property as they were not traceable --Mother was to make equalization payment of $74,812.83 to father.

Liu v. Huang (2018), 2018 ONSC 3499, 2018 CarswellOnt 17206, Kristjanson J. (Ont. S.C.J.); additionalreasons at (2018), 2018 CarswellOnt 21403, 2018 ONSC 7441, Kristjanson J. (Ont. S.C.J.) [Ontario]

FAM.III.5.n


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The Canadian Abridgment eDigests - Family Law - Ontario

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Classification Number: III.5.n

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

Parties were married in 1984, and separated in 2016, after 32 years of marriage -- Husband was retired fromown business, mother had been retail employee but was currently unable to work -- Largest asset of family washusband’s pension, and property also included matrimonial home and camp property, three automobiles, andother interests -- Wife brought application for divorce, support, and division of family property -- Applicationgranted -- Husband required to make equalization payment of $403,421.14 -- Wife’s family property adjusted toreflect credit card debt of $2,000 -- Alleged loans owed by husband were not proven and were beyondlimitation period, and were not deducted from his family property -- There had been no unconscionability andequal division of family property was proper -- Camp property to be security for equalization payment and wasnot be sold.


FAM.III.6.b.i


Classification Number: III.6.b.i

Division of family property -- Valuation of specific assets -- Business -- Private corporation

Parties were married in 1984, and separated in 2016, after 32 years of marriage -- Husband was retired fromown business, mother had been retail employee but was currently unable to work -- Largest asset of family washusband’s pension, and property also included matrimonial home and camp property, three automobiles, andother interests -- Wife brought application for divorce, support, and division of family property -- Applicationgranted -- Valuation of company was $27,690, to be added to husband’s family property -- Notional dispositioncosts not subtracted from value of business, and $15,000 bonus paid to husband included in its value --Business was not considered gift from father -- Husband provided services for company on understanding itwould one day be transferred to him -- Half of value of shares in another corporation were attributed to husband.


FAM.III.6.i


Classification Number: III.6.i

Division of family property -- Valuation of specific assets -- Date of valuation

Parties, who had one child, age 4.5, married in 2006 and separated in 2015 -- Parties jointly owned car, but loanwas in father’s name and mother had refused consent to sell -- Second vehicle was in father’s name, but loan,which father paid, was in both names, and mother had sole use of car for 14 months following separation --Father brought application for equalization of family property and other relief -- Application granted -- First car

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was to be valued at date of separation as father had been unable to take advantage of separation date valuebecause of mother’s unreasonable refusal to consent to sale -- Mother was to account for 100 per cent ofpayments made on second vehicle while it was in her sole possession and 50 per cent of payments thereafterdue to her refusal to consent to sell first vehicle.


FAM.III.10.c


Classification Number: III.10.c

Division of family property -- Matrimonial home -- Occupation rent

Parties, who had one child, age 4.5, separated in 2015 after nine years of marriage -- Father left matrimonialhome after assault by mother, but had paid entire mortgage, property taxes and home insurance until motherwas ordered to contribute 50 per cent in September 2016 -- Following separation, mother continued to reside inmatrimonial home with her parents and father rented apartment -- Since separation, father had been seeking saleof matrimonial home -- Father brought application for occupation rent and other relief -- Application granted --It was equitable to make award for occupation rent since father had made it clear since separation that hewanted to sell home and needed his equity in home to pay debts, he was deprived his equity in home, and heshould not have been forced to bring motion for sale of home when he had been forced to bring numerousmotions related to access, which was key priority -- Mother was to pay father occupation rent of $37,247.50.


FAM.IV.1.b.i.E


Classification Number: IV.1.b.i.E

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

Parties, who had one child, age 4.5, separated in 2015 after nine years of marriage -- Parties married in China in2006 -- Mother immigrated to Canada in 2007 to join father, who was working here, and obtained job a fewmonths after immigrating -- Father paid for mother to obtain certified management accountant designation andhe paid for virtually all household expenses -- Following birth of child, mother took maternity leave, father tookthree weeks of work and both sets of grandparents resided with family before and after birth -- Fatherperformed many household chores and significant amount of child care -- Mother’s employment income hadincreased from $67,654 in 2012 to $81,796.75 in 2017 and her savings and pensions had substantially increasedduring marriage -- Mother brought claim for spousal support -- Claim dismissed -- Mother was not entitled tospousal support on either compensatory or needs basis -- Mother had not suffered economic disadvantage from

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marriage or its breakdown as result of roles taken on during marriage, and there was no pattern of economicdependency during marriage.


FAM.IV.1.b.iii


Classification Number: IV.1.b.iii

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

Parties were married in 2000, separated in 2014, and had two daughters -- Ruling was made on custody andaccess, child support, spousal support and claims related to property and equalization -- Wife establishedentitlement to spousal support on compensatory grounds -- Wife had moved in with her mother, who waspaying her household expenses in range of $2000 to $3000 per month -- Wife secured employed in 2018 at$18.50 per hour for 40 hour week -- Wife’s income was considered at $38,376 per year based on her currentemployment -- Given that both children resided with wife, she was entitled to monthly support in midrangeamount of $844 -- Wife was struggling to make ends meet and she and her daughters lived very modestly --There as no retroactive spousal support order.

Valley v. Hay (2018), 2018 ONSC 6521, 2018 CarswellOnt 18155, P.J. Monahan J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.c.i


Classification Number: IV.1.c.i

Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse’sannual income -- General principles

Parties were married in 1984, and separated in 2016, after 32 years of marriage -- Husband was retired fromown business, mother had been retail employee but was currently unable to work -- Largest asset of family washusband’s pension, and property also included matrimonial home and camp property, three automobiles, andother interests -- Wife brought application for divorce, support, and division of family property -- Applicationgranted -- Wife was 56 years old, had grade 11 education and no marketable skills, and had not earned anyincome since 2007 -- Husband was 58 and retired, but company had ability to generate $10,000 of income --Wife had no ability to contribute to reasonable standard of living and no income should be imputed --Husband’s income was pre-judgment $48,032, with $10,000 being generated by business and remainder frompension income, and $19,016 after division of pension -- Wife’s income prior to date of judgment was $0, andpost judgment would be $19,000 from return on pension assets -- Spousal support was primarily compensatory,and was entitled to upper range of support -- Wife entitled to $1,800 per month until pension transfer, at whichpoint she was to receive $375 per month.

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FAM.IV.1.c.iii


Classification Number: IV.1.c.iii

Support -- Spousal support under Divorce Act and provincial statutes -- Determination of spouse’sannual income -- Imputed income

Parties were married for 28 years after living together for three years, and they had three children who were alladults -- Wife left employment after first child was born, she remained at home as full-time homemaker, shewas not employed when parties separated but she had recently taken nail technician course that allowed her toenter apprenticeship program -- Husband worked at mill for 30 years until mill shut down, he had beenemployed by five different employers since his long-term employment ended but none of jobs lasted becausehusband experienced memory problems and had difficulty performing required tasks of employment --Husband was reformed alcoholic but he started drinking again when mill shut down -- Husband had tried findother employment without success, and his sole income was $821 per month from Registered RetirementIncome Fund (RRIF) -- Wife brought motion seeking spousal support -- Motion dismissed -- Wife had not metburden of proving that husband was intentionally unemployed -- Husband was alcoholic who suffered fromanxiety and depression, and one or more of those disorders might have caused or contributed to his cognitivedecline/memory issues he experienced, which led to termination of his last probationary employment -- Courtwas not prepared to find that because husband’s longstanding alcohol disorder might have caused his memoryloss, that he was intentionally unemployed -- When husband was terminated from his probationary employmentit was not because he voluntarily chose not to work -- Husband’s employment history indicated that he was notsomeone who was in habit of avoiding work -- Steps husband took to find employment after he was terminatedwere reasonable -- Income was not imputed to husband beyond money he was withdrawing from his RRIF, andthat income was too low to warrant spousal support order -- While wife was entitled to spousal support,husband did not have ability to pay.

Schneidermeier v. Bernosky (2018), 2018 ONSC 5316, 2018 CarswellOnt 15469, D.C. Shaw J. (Ont. S.C.J.);additional reasons at (2018), 2018 ONSC 7052, 2018 CarswellOnt 20616, D.C. Shaw J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.i.ii


Classification Number: IV.1.i.ii

Support -- Spousal support under Divorce Act and provincial statutes -- Time-limited award -- Spouse tobecome self-sufficient

Husband and wife had 12-year relationship, including five years of marriage, that ended in 2005 -- Husbandwas dentist whose income was $250,000 -- Children spent just over 40 percent of their time with father sinceApril 2011 -- Husband brought application to terminate spousal support, vary child support, and imputefull-time employment income to wife -- Mother responded with request for full table amount of child support

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and increase in spousal support with no fixed termination date -- Range for duration of spousal supportrelationship was six to 16 years -- Support had been paid, with no arrears, for 13 years -- Entitlement to spousalsupport had not expired -- Husband was ordered to continue to pay monthly spousal support of $1,848 --Entitlement would expire August 31, 2021, and that was when it would end -- Wife’s claim for increase ofspousal support to $4,000 per month had to fail -- Children benefit from post-separation increases in parent’sincome through operation of table child support but there is no parallel entitlement for former spouses -- Therewas no evidence of strong compensatory basis for entitlement for wife to share in husband’s post-separationincreases in income -- Parties disagreed as to whose decision it was for mother to stay home but father’sevidence was more believable that they had not agreed given significant debt they had accrued -- Both partiesbenefited during relationship -- Since 2011 parties had shared parenting, allowing each opportunity to maximizetheir careers -- Wife had assistance of full-time, live-in nanny from time of separation until 2011 and child carethereafter until March 2017 -- Wife’s choice to stay home as primary caregiver was hers alone -- Wife had noevidence of any contributions or sacrifices for benefit of husband’s dental practice conferred during relationshipor afterwards, that created loss for which she had not already been compensated -- Wife’s net family propertyhad increased -- Husband’s net family property increased but none of those increases were attributable torelationship with wife.

Lazare v. Heitner (2018), 2018 ONSC 3604, 2018 CarswellOnt 9389, H. McGee J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.j.i


Classification Number: IV.1.j.i

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

Parties were married for six years after living together for two years, and they had two children -- Wife workeduntil first child was born and then she did not return to work -- Husband’s income had increased substantially --Wife had returned to school and earned two degrees, dental assistant and dental hygienist, but she only workedpart-time -- Husband brought motion for relief, including terminating spousal support -- Motion granted in part-- Wife’s successful completion of two practical diploma programs was material change in circumstance thatwas enduring and substantial -- Wife failed to take reasonable steps toward economic independence afterretraining and having period of time to establish herself in workforce, which was second material change ofcircumstance -- Third change in circumstance occurred when younger child moved to husband’s home --Relationship lasted only eight years, but wife had received spousal support for over 13.5 years -- Wife had beencompensated for economic disadvantage flowing from marriage and its breakdown, and her compensatoryentitlement had come to end -- Given children’s change in residence, husband’s voluntary overpayment of childsupport, amount of spousal support and number of years it had been paid, wife had been compensated forfinancial consequences of child care after marriage breakdown -- Wife had not established she could not workfull-time due to mental health issues -- Wife’s needs-based entitlement stemming from marriage breakdown hadbeen met -- Husband was to continue to pay spousal support of $4,200 until December 31, 2018, and he was topay spousal support of $2,000 per month for further for four months at which time spousal support would end.

Miller v. Miller (2018), 2018 CarswellOnt 14021, 2018 ONSC 5003, D. Summers J. (Ont. S.C.J.); additionalreasons at (2018), 2018 ONSC 6779, 2018 CarswellOnt 22707, D. Summers J. (Ont. S.C.J.) [Ontario]

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FAM.IV.1.k


Classification Number: IV.1.k

Support -- Spousal support under Divorce Act and provincial statutes -- Review of order

Parties were married for 27 years, separated and battled each other in litigation since -- Amount on spousalsupport payable by husband as varied on appeal was $13,759.00 per month -- Husband sought to reduce figure-- Husband brought motion to effect reduction of amount on interim basis was set for following year -- Wife‘smotion to strike whole proceeding was served -- Ruling was made as to several concerning items -- Husbanddid not need to produce or disclose anything further -- Proofs of withdrawals of T4s were requested.

Berta v. Berta (2018), 2018 CarswellOnt 21581, 2018 ONSC 7659, Conlan J. (Ont. S.C.J.) [Ontario]

FAM.IV.1.k


Classification Number: IV.1.k

Support -- Spousal support under Divorce Act and provincial statutes -- Review of order

Husband and wife had 12-year relationship, including five years of marriage, that ended in 2005 -- Husbandwas dentist whose income was $250,000 -- Children spent just over 40 percent of their time since April 2011 --Husband brought application to terminate spousal support, vary child support, and impute full-time employmentincome to wife -- Wife responded with request for full table amount of child support and increase in spousalsupport with no fixed termination date -- Range for duration of spousal support relationship was six to 16 years-- Support had been paid, with no arrears, for 13 years -- Entitlement to spousal support had not expired --Entitlement would expire August 31, 2021, and that was when it would end -- Husband was ordered to continueto pay monthly spousal support of $1,848 -- At time of separation wife clearly had non-compensatory basis forentitlement to spousal support as her part time income was insufficient to cover her personal expenses and thosenecessary to her care of children, over and above child support -- Husband’s payment of full table child supporteven during last seven years of shared parenting, his contributions to child care and his payment of spousalsupport over last 13 years addressed wife’s need for non-compensatory support -- Wife chose to be employedon part-time basis -- Wife did have compensatory claim for spousal support on narrow ground of achievingsome measure of parity between households so that children did not experience financial disparity between theirparent’s homes -- Wife’s income was imputed to $78,000 -- Wife’s claim for increase of spousal support to$4,000 per month had to fail -- There was no basis for wife to share in husband’s post-separation increase in income.


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FAM.IV.3.a.i


Classification Number: IV.3.a.i

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

Parties married in 2005 and separated in April 2014 -- Two children of marriage were born in 2005 and 2009 --Parties entered into separation agreement in November 2014 which provided for joint custody and sharedparenting of children -- Agreement provided that each party had income of $73,000 -- Agreement was varied inJanuary 2018 to provide that children’s primary residence be with mother -- Father worked as contractor butallegedly reduced employment to spend more time with children -- Mother brought application for orderimputing income to father and ongoing and retroactive child support and s. 7 expenses -- Application granted --Father was intentionally underemployed -- Income of $73,000 was imputed to father -- Father was ordered topay ongoing monthly child support in amount of $1,109 -- Father owed retroactive child support for periodfrom January 2018 to December 2018 in amount of $13,308.

Sullivan v. Mahoney (2018), 2018 CarswellOnt 22269, 2018 ONSC 7211, Barnes J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.a.iii


Classification Number: IV.3.a.iii

Support -- Child support under federal and provincial guidelines -- Application of guidelines -- Shared orsplit custody

Parties were married for nine years and they had two children -- Parties had joint custody of children sinceseparation, but older child now resided with mother full-time -- Parties entered into separation agreement thatprovided for father to pay set-off child support, and parties agreed to provide copy of income tax return and anynotices of assessment on annual basis so child support could be adjusted -- Mother brought motion for relief,including determination of child support -- Motion granted in part -- Parties had hybrid situation where oneparty had full custody of one child and they shared equal custody of other child -- In determining child supportpayable, economies of scale approach was applied relying on Divorcemate software -- Father was to pay childsupport for oldest child based on Federal Child Support Guidelines, and child support for younger child wasdetermined using set-off approach -- Father was ordered to pay child support of $867 per month.

Granter v. Tricco (2018), 2018 ONSC 6906, 2018 CarswellOnt 21799, Sylvia Corthorn J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.a.iii

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Classification Number: IV.3.a.iii

Support -- Child support under federal and provincial guidelines -- Application of guidelines -- Shared orsplit custody

Parties, who had one child, age 4.5, marred in 2006 and separated in 2015 -- Father’s employment wasterminated mid-way through trial, but he had secured employment with another company -- Father’s income for2017 was $128,266 -- Mother’s income for 2017 was $140,816, which included employment income of$81,796.75 and RRSP withdrawals of $59,107.93 -- Father brought application for determination of childsupport and other relief -- Application granted -- Ongoing support was to be based on father’s 2017 income -- Itwould not be unfair to include RRSP withdrawals in mother’s 2017 income as RRSP withdrawals hadpreviously been included in father’s income for purpose of calculation of child support -- Child’s section 7expenses were to be split in proportion to parties’ incomes, with father to pay 48 per cent and mother to pay 52per cent of expenses -- As parties had equal parenting time with child, mother was to pay child support to fatherin set-off amount of $100 -- Father had underpaid child support and s. 7 expenses from date of separation inamount of $12,925, which was to be credited to mother.


FAM.IV.3.b.i


Classification Number: IV.3.b.i

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

Parties began cohabiting in 2009 and married in 2010 -- Child of marriage was born in 2012 -- Mother lefthome in March 2013 with child -- Father brought application for determination of custody, parenting time,decision-making and child support -- Application granted -- Parties were granted shared custody of child --Parenting schedule granted father parenting time for 40 per cent of time -- Father earned less than mother butneither was high income earner -- Parties’ incomes were not particularly disparate for child support purposes --Child support payments were stopped -- Parties were to pay proportionate share of s. 7 expenses.

Hughes v. Dickinson (2018), 2018 ONSC 6263, 2018 CarswellOnt 22287, Stewart J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.b.i


Classification Number: IV.3.b.i

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

Mother and father had 12-year relationship, including five years of marriage, that ended in 2005 -- Father wasdentist whose income was $250,000 -- Children spent just over 40 percent of their time with father since April2011 -- Father brought application to terminate spousal support, vary child support, and impute full-timeemployment income to wife -- Mother responded with request for full table amount of child support andincrease in spousal support with no fixed termination date -- Father’s application granted in part; child supportvaried -- Father was ordered to pay child support of $2,095, which was set off amount from $3,277 ordered lessmother’s monthly child support owing to father of $1,182 -- Mother’s income was imputed to $78,000 --Children had been alternating residences between their parents’ homes since April 2011 -- Mother’s claim thatshe was running deficit was not borne out by evidence -- Set off child support would not lead to significantvariation in standards of living between households -- Mother was also still receiving spousal support of $1,848per month which gave them very similar incomes -- Support was changed as of June 1, 2018 which was realbenefit to mother.


FAM.IV.3.b.iv.A


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

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

Parties began cohabiting in 1996 and separated in 2017 -- Parties had three children together, born in 2003,2006 and 2012 -- Children were in care of mother since separation -- Father was in receipt of Ontario DisabilitySupport Program (ODSP) -- Trial was held to determine issues related to access and child support -- Father wasordered to pay child support in amount of $136 per month based on his annual ODSP income -- Father did notplead undue hardship -- It did not appear that father was doing everything he could to carefully manage whatfew resources he had -- Child support was right of children.

K.A.L. v. P.K.O. (2018), 2018 ONCJ 921, 2018 CarswellOnt 22490, S.E.J. Paull J. (Ont. C.J.) [Ontario]

FAM.IV.3.b.vii.A


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

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

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Following separation in 2012, three children resided primarily with mother -- Father was terminated fromemployment as bus driver in May 2017 and began working as non-union and then union drywaller -- He earned$75,059 in 2012, $73,180 in 2013, $68,007 in 2014, $65,453 in 2015 and $68,342 in 2016, had line 150 incomeof $54,588 in 2017, and anticipated earning $50,000 in 2018 and $60,000 to $65,000 in 2019 -- Mother earned$29,974 in 2017 and was expected to earn $28,000 in 2018 and $30,000 beginning 2019 -- At trial to determineappropriate orders for child support, mother sought to impute greater income to father -- Father was ordered topay Guidelines child support on actual income from 2012 to 2016 and on imputed income of $65,800 for 2017,$55,000 for 2018, $65,000 for 2019, $75,000 for 2020 and $87,000 beginning 2021 -- Although parties haddealt with matter voluntarily until that time, mother sought order requiring father to pay proportionate share ofs. 7 expenses beginning in 2017 -- Order accordingly -- Based on parties actual or imputed incomes, father wasordered to reimburse mother, within 30 days of receipts being provided, for 69 percent of s. 7 expenses for2017, 66 percent for 2018, 68 percent for 2019, 71 percent for 2020 and 74 percent beginning 2021 -- Orderincluded expenses for hockey registration and equipment, theatre program, various school fees and daycare.

Miolla v. Miolla (2019), 2019 ONSC 161, 2019 CarswellOnt 315, F. Graham J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.b.vii.A




Parties were married for nine years and they had two children -- Parties had joint custody of children sinceseparation, but older child now resided with mother full-time -- Parties entered into separation agreement thatprovided for father to pay set-off child support, and parties agreed to provide copy of income tax return and anynotices of assessment on annual basis so child support could be adjusted -- Mother brought motion for relief,including arrears of child support -- Motion granted in part -- Mother provided minimal evidence to support s. 7expenses for which she claimed reimbursement -- In absence of such evidence and in light of mother’s lack ofcompliance with terms of agreement as they related to s. 7 expenses, mother was not entitled to full disputedamount -- Father did not deny that expenses were addressed without adherence to precise terms of agreement,and there was no evidence from father that he gave mother notice that he would be relying on precise terms ofagreement with respect to s. 7 expenses as of specified date -- Mother was lulled into false sense of securityabout s. 7 expenses because father did not hold her to precise terms of agreement -- As both parties had notadhered strictly to terms of agreement with respect to s. 7 expenses, it was reasonable for father to reimbursemother additional $300 out of claimed $556.21 for hockey tournament fees and school fees without necessity ofmother providing invoices or receipts.


FAM.IV.3.b.vii.A

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Parties began living together in 2008, never married, separated in 2013, and had two children -- Sinceseparation, children resided in primary care of mother, while father had access -- Ruling was made on s. 7expenses -- For 2014, father was to pay child support in amount of $968 per month (based on income of$65,126) and $235 as his share of children’s s. 7 expenses -- For 2015, father was to pay $948 in support (basedon income of $63,792) and sum of $624 per month for his share of children’s s. 7 expenses -- For 2016, fatherwas to pay $579 per month in support based on ($40,006 annual income) and $369 per month for share of s. 7expenses -- For 2017, father was ordered to pay $459 per month based on imputed $30,000 income and $63 permonth for s. 7 expenses -- For 2018, father was to pay $459 per month in support and $72 per month for s.7expenses -- Father owed arrears of child support and s. 7 in amount of $11,361 since 2014 -- These were to paidoff in equal installments over four year period.

Grenier v. Imbeault (2018), 2018 ONSC 6467, 2018 CarswellOnt 18214, Mark Shelston J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.b.vii.A




Parties married in 2005 and separated in April 2014 -- Two children of marriage were born in 2005 and 2009 --Parties entered into separation agreement in November 2014 which provided for joint custody and sharedparenting of children -- Agreement provided that each party had income of $73,000 -- Parties were to shareextraordinary expense equally -- Agreement was varied in January 2018 to provide that children’s primaryresidence be with mother -- Mother brought application for order imputing income to father and ongoing andretroactive child support and s. 7 expenses -- Application granted -- Father was intentionally underemployed --Income of $73,000 was imputed to father -- Father was ordered to pay retroactive and ongoing child support --Father owed amount of $4,184.88 for retroactive share of one child’s dance lessons -- Each party’s annualfinancial contribution to extracurricular activities for each child was capped at $1000 per annum -- Mother’sincome for 2017 was $75,000 and father’s income was $73,000 -- Mother’s proportionate share of s. 7 expenseswas 51 per cent and father’s share was 49 per cent.


FAM.IV.3.b.vii.A

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Father was to fund 70 percent of children’s s. 7 expenses, provided he was consulted and agreed in advance toexpenses in question.


FAM.IV.3.b.vii.A




Mother and father had two daughters, L and M -- Parties separated and agreed to joint custody and time sharing-- Father engaged in serious misconduct during access visits and had his time sharing reduced to supervisedaccess -- Father refused to exercise supervised access and had not seen children in more than one year -- Motherbrought application for sole custody and child support -- Application granted; mother awarded sole custodywith no access to father -- Father was ordered to pay ongoing base guideline child support of $1,203 per monthstarting May 1, 2018, and 50 percent of expenses under s. 7 of Child Support Guidelines -- Section 7 expensesincluded but were not limited to uninsured medical, dental, therapy, orthodontics, summer camp, swimming andkarate -- Father’s annual income for ongoing child support purposes was $79,510 -- Mother was willing to pay50 percent of ongoing special expenses for children rather than proportionate basis as required by s. 7 ofGuidelines -- Father was also required to maintain medical and dental insurance for children.

Van v. Palombi (2018), 2018 ONSC 6228, 2018 CarswellOnt 17245, J.P.L. McDermot J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.c.i


Classification Number: IV.3.c.i

Support -- Child support under federal and provincial guidelines -- Determination of spouse’s annualincome -- General principles

Parties were married for nine years and they had two children -- Parties had joint custody of children sinceseparation, but older child now resided with mother full-time -- Parties entered into separation agreement thatprovided for father to pay set-off child support, and parties agreed to provide copy of income tax return and anynotices of assessment on annual basis so child support could be adjusted -- Mother brought motion for relief,including arrears of child support -- Motion granted in part -- Father had not provided timely financial

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disclosure -- Father failed to demonstrate that excluding one-time severance payment he received in his incomewould be fairest determination of his income, and he was not entitled to deduct severance payment from his2014 income -- Father claimed that funds withdrawn from RRSPs were not used to enhance his lifestyle butwere used to pay down debt that arose as consequence of marriage, but there was no documentation to supportfather’s claim -- Father failed to establish that exclusion of RRSP funds from his income would be fairestdetermination of his income for purpose of calculating child support obligation -- Parties chose not to abide byintent of separation agreement and adopted different method by which to adjust child support on annual basis,but father overlooked parties’ deliberate decision -- Annual adjustment effective June 1, 2018 was to be madebased on father’s line 150 total income for 2017, not his actual income -- Father owed arrears of child supportof $6,893.


FAM.IV.3.c.ii


Classification Number: IV.3.c.ii

Support -- Child support under federal and provincial guidelines -- Determination of spouse’s annualincome -- Pattern of income

Following separation in 2012, three children resided primarily with mother -- Father, employed as bus driver,earned $75,059 in 2012, $73,180 in 2013, $68,007 in 2014, $65,453 in 2015 and $68,342 in 2016 -- In May2017, he was terminated and began working as self-employed non-union drywall taper earning $20 per hour --In 2017, he had line 150 income of $54,588 comprised of employment income of $34,528, employmentinsurance benefits of $13,103, net business income of $5,681 (from gross of $21,483) and "other income" of$1,200 -- In April 2018, he joined union and began working as self-employed union subcontractor at one-half ofjourneyman drywaller’s rate of $44 per hour -- He received periodic increases and estimated he would beginreceiving full journeyman’s rate in October 2020 -- He often chose to do piece work at which he could earnmore than hourly rate -- He anticipated earning $50,000 in 2018 and $60,000 to $65,000 in 2019 -- At trial todetermine appropriate quantum of child support, mother sought to impute greater income to father -- Orderaccordingly -- It appeared, on balance of probabilities, father had understated his business income andoverstated his business expenses for 2017 -- Income for support purposes of $65,800 was imputed to him for2017 -- Since significant portion of father’s income for 2017 was from employment as bus driver, he wouldlikely be unable to repeat that for 2018 -- Income for support purposes of $55,000 was imputed to him for 2018-- Father was ordered to pay Guidelines child support on actual income to 2016 and on imputed income of$65,800 for 2017, $55,000 for 2018, $65,000 for 2019, $75,000 for 2020 and $87,000 beginning 2021.

Miolla v. Miolla (2019), 2019 ONSC 161, 2019 CarswellOnt 315, F. Graham J. (Ont. S.C.J.) [Ontario]

FAM.IV.3.c.iii.A


14




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

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

Parties married in 2005 and separated in April 2014 -- Two children of marriage were born in 2005 and 2009 --Parties entered into separation agreement in November 2014 which provided for joint custody and sharedparenting of children -- Agreement provided that each party had income of $73,000 -- Agreement was varied inJanuary 2018 to provide that children’s primary residence be with mother -- Father worked as contractor butallegedly reduced employment to spend more time with children -- Mother brought application for orderimputing income to father and ongoing and retroactive child support and s. 7 expenses -- Application granted --Father was intentionally underemployed -- Father carried on business through corporation and had ability tomanipulate income as shareholder of corporation -- Income reported by father did not fairly reflect all incomeavailable for child support purposes -- Income of $73,000 was imputed to father.


FAM.IV.3.c.iii.B


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

Support -- Child support under federal and provincial guidelines -- Determination of spouse’s annualincome -- Imputed income -- Ability to earn income

Parties began living together in 2008, never married, separated in 2013, and had two children -- Sinceseparation, children resided in primary care of mother, while father had access -- Ruling was made regardingfather‘s income and child support -- Mother earned $29,960 in 2016; $11, 168 in 2017, and father earned$40,006.39 in 2016 -- Father was laid off in mid 2016 and did not seek full time employment until mid 2017 --Father showed complete disregard for court orders and obligation to provide financial disclosure -- Court drewadverse inference against father for his failure to respond to inquires regarding efforts to obtain employmentand his breach of orders -- Father’s income for 2017 was imputed at $30,000 -- Farther had relevant workexperience and bilingualism -- Father was to pay table child support in amount of $459 per month.


FAM.IV.3.c.iii.C


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

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

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Husband and wife had 12-year relationship, including five years of marriage, that ended in 2005 -- Husbandwas dentist whose income was $250,000 -- Children spent just over 40 percent of their time with father sinceApril 2011 -- Husband brought application to terminate spousal support, vary child support, and imputefull-time employment income to wife -- Mother responded with request for full table amount of child supportand increase in spousal support with no fixed termination date -- Application granted in part -- Husband wasordered to continue to pay monthly spousal support of $1,848, until August 31, 2021 -- Mother’s income wasimputed to $78,000 -- Mother was physiotherapist and since 2010 had been employed at hospital on part-timebasis with salary of $47,915 for 18.75 paid hours per week -- Mother had failed in her duty to maximize herearnings -- Wife was intentionally under-employed given her skills and experience, current demand forphysiotherapists, ages of children and shared parenting arrangements -- Wife’s evidence revealed she wasrunning private practice from her home, entirely in cash -- Wife was evasive concerning her hourly rate andcontradicted herself with respect to number of patients that she had seen in past six months -- Evidencesuggested that wife had been supplementing her employment income through private practice and at minimumshe was making $78,000 per year.


FAM.IV.3.c.iii.I


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

Support -- Child support under federal and provincial guidelines -- Determination of spouse’s annualincome -- Imputed income -- Prospective income

Parties were married in 2000, separated in 2014, and had two daughters -- Ruling was made on custody andaccess, child support, spousal support and claims related to property and equalization -- Father acknowledgedhe was required to pay table child support with respect to both daughters -- Father’s income for child supportpurposes for years 2015 to 2017 was $177,000.00 -- However, father expected to earn less due to jobtermination -- Father was hopeful in securing employment, and based on interviews he receive, his salary wouldbe in range of $110,000 to $130,000 per year -- Father’s income was imputed at $125,000 per year based onabove considerations -- Father was ordered to pay monthly child support in amount of $1,777.00 -- Prior toparties’ separation, mother earned income through company.


FAM.IV.3.c.iii.L


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

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

16




Mother and father had two daughters, L and M -- Parties separated and agreed to joint custody and time sharing-- Father engaged in serious misconduct during access visits and had his time sharing reduced to supervisedaccess -- Father refused to exercise supervised access and had not seen children in more than one year -- Motherbrought application for sole custody and child support -- Application granted; mother awarded sole custodywith no access to father -- Father was ordered to pay ongoing base guideline child support of $1,203 per monthstarting May 1, 2018, and 50 percent of expenses under s. 7 of Child Support Guidelines -- Father’s annualincome for ongoing child support purposes was $79,510 -- Mother was willing to pay 50 percent of ongoingspecial expenses for children rather than proportionate basis as required by s. 7 of Guidelines -- Mother’sincome was less that than father’s -- Father had been earning extra income as dance instructor and his statementthat he had resigned was not relevant -- Extra income from dance instruction was determined to be $5,100.


FAM.IV.3.h.vii


Classification Number: IV.3.h.vii

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

Parties were married for six years after living together for two years, and they had two children -- When partiesseparated children lived primarily with mother, older child then went to live with father but he currentlyprimarily resided with his girlfriend while still receiving financial support from father, and younger child nowlived with father -- Father brought motion for relief, including varying child support -- Motion granted in part --Mother sought retroactive child support for younger child based on significant increases in father’s income --Mother’s alleged fear of father as reason for not asking for increased child support sooner was not credible --Father made timely disclosure of his income information -- Mother’s delay in seeking increased child supportwas not justified -- Both parties understood their obligations to pay child support based on their respectiveincomes, once formal notice was given there was no excuse for not paying correct amount of child support toother, and both parties knowingly preferred their own interests -- There was no evidence that younger child’slifestyle was impacted or diminished by amount of child support that was paid when he lived with mother --There was no evidence of hardship to father -- Father was to pay retroactive child support from April 1, 2015,month following effective notice, to December 31, 2016, after which younger child lived with him, and heowed $60,084 -- After younger child moved to father’s home he continued to pay child support to mother, andmother should reimburse father $32,279 that she was not entitled to receive, which was to be set-off againstretroactive child support father owed.


FAM.IV.3.h.xi


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Classification Number: IV.3.h.xi

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

Mother and father had two daughters, L and M -- Parties separated and agreed to joint custody and time sharing-- Father engaged in serious misconduct during access visits and had his time sharing reduced to supervisedaccess -- Father refused to exercise supervised access and had not seen children in more than one year -- Motherbrought application for sole custody and child support -- Application granted; mother awarded sole custodywith no access to father -- Father was ordered to pay ongoing base guideline child support of $1,203 per monthstarting May 1, 2018, and 50 percent expenses under s. 7 of Child Support Guidelines -- Father was ordered topay retroactive child support from 2013 to April 2018 in amount of $7,331 and arrears of s. 7 expenses inamount of $1,306 -- Total child support arrears were $8,637 -- There was no unreasonable delay in motherseeking increased support but much delay could be attributed to father’s failure to provide necessary disclosureand as such mother was entitled to make claim for retroactive child support -- Under separation agreementmother was entitled to annual financial disclosure from father and he did not provide any until quite late.


FAM.IV.3.i.i


Classification Number: IV.3.i.i

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

Subsequent to being dismissed from employment for cause, father was ordered to pay child support of $753 permonth on imputed income of $50,000 per year -- Although mother registered order with Family ResponsibilityOffice (FRO), no enforcement steps were undertaken because father was in receipt of social assistance -- In2014, father brought motion to change on basis he had been physically disabled by motor vehicle accident andwas unable to work as result of major depressive disorder -- Motion was dismissed on basis of adverseinference drawn from father’s failure to make full disclosure and lack of credible evidence with respect todisability -- Although father was eventually found to be eligible for disability, mother claimed that he continuedto lead normal lifestyle, travelling and engaging in social activities while working for cash -- Mother withdreworder from FRO and brought own motion to enforce arrears of $36,712.84, calculated by FRO to November2016, and $11,295, calculated by her to June 2018 (by which time neither child remained child of marriage) --Motion granted in part -- Since there was no ongoing support obligation, only issues were actual amount ofarrears and whether there was any valid reason for failure to pay -- FRO’s statement of arrears to November2016 was presumed to be correct -- Adjusting mother’s calculations to reflect support obligation for only onechild once eldest was no longer child of marriage, rather than simply dividing original obligation in half asmother had done, father was found to owe further arrears of $8,627 for total of $45,339 -- Father was presumedto have ability to pay -- Drawing adverse inferences from his failure to call psychiatrist, owner of businesswhere he was alleged to have worked and paternal grandmother with whom he had intermingled funds aswitnesses, as well as from his extensive travel and unusual explanation for payment of expenses, it was notpossible to conclude father was totally without assets or income with which to meet his obligations or wasunable to pay as result of circumstances beyond his control -- Notwithstanding his receipt of disability, whichrequired finding that he was unable to work, father had not established on balance of probabilities that he was

18



unable for valid reason to pay arrears -- Father was ordered to pay $10,000 within 90 days, failing which hewould be imprisoned for 60 days, at which time plan for payment of balance would be determined.

Plunkett v. Astudillo (2019), 2019 ONCJ 9, 2019 CarswellOnt 347, Roselyn Zisman J. (Ont. C.J.) [Ontario]

FAM.IV.3.i.i


Classification Number: IV.3.i.i

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

Judge ordered father to pay child support in amount of $426 per month for his 8-year old child, based on annualincome imputed to him of $46,200 -- Father did not pay any child support since existing order was made --Support arrears amounted to $30,352.93 -- Father brought motion for order that Director of FamilyResponsibility Office refrain from directing Registrar of Motor Vehicles to suspend his driver‘s licence --Motion dismissed -- Even payors with poor payment histories usually make some effort to meet their supportobligations -- Father did not pay penny of support since existing order was made in 2012 -- Judge found fatherhad ability to pay child support ordered in existing order -- Father was steadily employed for at least last twoyears and was earning over $40,000 annually -- Court had no sympathy for father -- Father still had option tokeep his licence by making agreement with Director for payment of arrears.

Akhter v. Ontario (Director, Family Responsibility Office) (2018), 2018 CarswellOnt 21704, 2018 ONCJ 888,S.B. Sherr J. (Ont. C.J.) [Ontario]

FAM.IV.3.j.iii.C


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

Support -- Child support under federal and provincial guidelines -- Variation or termination of award --Change in circumstances -- Change in child’s custody or residence

Parties were married for six years after living together for two years, and they had two children -- When partiesseparated children lived primarily with mother, older child then went to live with father but he currentlyprimarily resided with his girlfriend while still receiving financial support from father, and younger child nowlived with father -- Mother had returned to school and earned two degrees, dental assistant and dental hygienist,but she only worked part-time -- Father brought motion for relief, including varying child support -- Motiongranted in part -- Change in children’s primary residence constituted material change in circumstances -- Factolder child resided with his girlfriend did not mean that he had withdrawn from his father’s charge -- Olderchild was under 18, he was still in school, he was amenable to father’s guidance and participation in his healthand schooling, and he remained child of marriage for purpose of support -- Mother was not earning what shewas reasonably capable of earning, and she was intentionally underemployed -- Mother had not established thatshe was unable to work full-time for medical reasons -- Income of $50,000 per year was imputed to mother,

19




which she was reasonably capable of earning.


FAM.IV.3.j.iii.D


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

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

Mother had child, born in 2003 -- In 2008, father was ordered to pay child support of $651 per month, on basisof annual income of $65,000, as well as arrears of $35,459 -- Father brought application to change final order,among other relief -- Application dismissed -- There had not ben change in father’s circumstances -- Fatheradmitted that he earned $65,000 in 2008, and he had ability to earn at least $65,000 -- Father’s evidence withrespect to his declared income was not credible -- It was obvious that father’s declared income was not hisactual income.

Godinez v. Espin (2019), 2019 ONCJ 7, 2019 CarswellOnt 333, Roselyn Zisman J. (Ont. C.J.) [Ontario]

FAM.IV.3.k.iii


Classification Number: IV.3.k.iii

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

Parties separated and had two sons -- Decision ordered father to pay child support for sons in amount of $,158per month based on imputed income of $250,000 -- Father was to pay mortgage on matrimonial home, homeinsurance, all phones of children, tuition, book and expenses for college, car insurance for family vehicle, lifeinsurance premiums, and costs of prescription drugs -- Father chose to disregarded payment terms and orderwas made issuing warrant for arrest -- Father was born in Egypt and was naturalized Canadian citizen whoworked in Saudi Arabia -- Father brought motion for order varying decision to have Canadian passport returnedto him together with other travel documents issued by Egypt and Saudi Arabia -- Motion dismissed -- Father‘sevidence was riddled with inconsistencies -- Evidence was clear that father repeatedly lied to court about his networth -- Sole object of motion was return of passport and other travel documents after which court had no doubtfather would leave jurisdiction and never return.

Hussein v. El-Awny (2018), 2018 CarswellOnt 21561, 2018 ONSC 7607, David A. Jarvis J. (Ont. S.C.J.) [Ontario]

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FAM.IX.2.a.viii


Classification Number: IX.2.a.viii

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

Parties began living together in 2008, never married, separated in 2013, and had two children -- Sinceseparation, children resided in primary care of mother, while father had access -- Parties agreed that access tononcustodial parent was to be every other weekend -- Child needed routine, stability and consistency -- Mothertestified she felt bullied and was extremely anxious with any interaction with father, when latter attempted toretrieve children at commencement of access -- Maternal grandmother confirmed there was nonverbalcommunication from father which created tension -- Child required very structured environment, emotionalsupport, and use of medication on daily basis -- Child suffered from outbursts and his behaviour was consideredmajor issue in psychological report -- Assessment repot recommended joint custody -- However, parties onlycommunicated by email exchange and mother felt intimidated by father and was very anxious with any contactwith him -- Joint custody was not option -- Parties could not communicate and showed no history of makingdecisions regarding children after separation on joint basis -- Parties’ views on childbearing were completelydifferent and there was no evidence they could make decision in best interests of children together -- Rulingwas made regarding custody and access -- Mother was granted sole custody -- Children were in mother’s carefor over five yeas and bonded with her -- Mother arranged medical appointments, and involvement inextracurricular activities -- M’s behaviour was significantly better in mother’s care -- Father did not act in bestinterests of children -- Father acted selfishly and did not conduct himself as parent who considered best interestsof his own children -- Father was entitled to access every second weekend from Friday until Sunday; he was topick up children -- Holiday schedule was split up accordingly -- Mother was to retain children’s passports --Father was to ensure children attended their extracurricular sports and practices while in his care.


FAM.IX.2.a.viii




Parties began cohabiting in 2009 and married in 2010 -- Child of marriage was born in 2012 -- Mother lefthome in March 2013 with child -- Father commenced proceedings to gain access to child -- Despite significantefforts by parties, parenting issues remained unresolved -- Father brought application for determination ofcustody, parenting time, decision-making and child support -- Application granted -- On balance,communication between parties was comparatively cooperative and civil -- Parties cooperated to engage familydoctor, pediatrician, dentist, daycare, school and before- and after-school care for child -- Order for shared

21



custody was in child’s best interests -- Parenting schedule granting father parenting time for 40 per cent of timewas maintained, subject to review after child completed grade six.

Hughes v. Dickinson (2018), 2018 ONSC 6263, 2018 CarswellOnt 22287, Stewart J. (Ont. S.C.J.) [Ontario]

FAM.IX.2.a.viii




Parties, who had one child, age 4.5, married in 2006 and separated in 2015 -- Parties separated after motherassaulted father -- Mother alleged father was uninvolved in care of child and that he was abusive, which causedher to fear for child -- Based on mother’s allegations of violence and abuse against father, father had no accessto child for three months following separation, then had supervised access for 11 months, followed bysupervised access exchanges and minimal access -- Father brought application for joint or sole custody andother relief -- Application granted -- It was in best interests of child to grant father sole custody and primaryresidence and mother to have generous access on schedule which allocated time 50/50 on 2-2-3 two-weekschedule -- Before separation, both parents played relatively equal role in care and upbringing of child oncemother returned to work following maternity leave -- Since separation, both parents had been capable parents,had provided stable home for child -- Mother made false allegations of family violence and lack of involvementin child care against father -- Mother was unable to communicate responsibly about child and since separationshe had taken unreasonable steps to limit father’s access to child, which was contrary to child’s best interestsand called into question her ability and willingness to make decisions in child’s best interests in relation tofather -- Father was only parent who would appropriately respect role of both parents in child’s life andprioritize her needs.


FAM.IX.2.b


Classification Number: IX.2.b

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

Parties were married in 2000, separated in 2014, and had two daughters -- Ruling was made on custody andaccess, child support, spousal support and claims related to property and equalization -- It was not necessary tomake custody order with respect to 16 year old daughter; she was expected to reside with mother and haveextensive access to father -- Arrangements depended upon older daughter’s views and preferences -- Withrespect to 14 year old, younger daughter, parties were to have joint custody -- Younger daughter was not yet inposition to make decision for herself independently -- Younger daughter would reside during week with mother

22





and every weekend with father.


FAM.IX.2.g.i


Classification Number: IX.2.g.i

Custody and access -- Factors to be considered in custody award -- Conduct of parent -- General principles

Mother and father had two daughters L and M -- Parties separated and agreed to joint custody and time sharing-- Father engaged in serious misconduct during access visits and had his time sharing reduced to supervisedaccess -- Father refused to exercise supervised access and had not seen children in more than one year -- Motherbrought application for sole custody -- Application granted; mother awarded sole custody with no access tofather -- Order was in children’s best interests -- Father failed to understand that his conduct was causing greatharm to children -- Children had been living with mother for most of their lives and had not seen their father inmore than 12 months -- Parents were not able to communicate effectively about their children -- Both parentshad exposed children to details of conflict but mother had shown insight into harm caused and worked tochange -- Father had no insight into consequences of his behaviour -- Father disregarded rules of supervisedaccess and displayed contempt -- Father continued to provide dairy products to M even though she had beendiagnosed with lactose intolerance -- Father also delayed in providing his consent to children participating intherapy which necessitated mother obtaining interim order -- Father refused to execute travel consents orprovide children’s passports which required court order -- Root of communication problems was father -- Jointcustody provisions in separation agreement were unworkable and harmful to children -- Mother was allowed totravel with children and obtain passports for them without father’s consent.


FAM.IX.2.g.vii


Classification Number: IX.2.g.vii

Custody and access -- Factors to be considered in custody award -- Conduct of parent -- Parental alienation

Mother moved out of matrimonial home with three children, after sixteen years of marriage during which sheshared her negative views of father with them -- In subsequent years, father had day-time access but childrendid not want to participate and attempts at reconciliation therapy failed -- As two older children were now 18and older, only youngest, now almost 14 years old, was only subject of proceedings -- Father applied for relief-- Application granted -- Mother’s allegations of father’s daily abuse, racism and womanizing were completelynon-credible, especially in light of evolution of years since separation, when she only raised one incident ofspanking and absence of any independent evidence -- Mother had successfully alienated children from father,

23




even before separation, and while such negative messaging might have dissipated over time, fact remained thatchild’s views were not independent and could not be given any weight -- Maintaining maximum contactbetween son and father was in child’s best interest -- Mother’s past alienating conduct reflected inability toadequately parent, and she would not take any steps to preserve, let alone promote, relationship between childand father -- Child had been emotionally damaged by mother’s parenting, demonstrated by his poor schoolattendance and grades, and recent violence towards her -- Continuing with status quo of mother’s destructiveparenting would result in termination of child’s relationship with father and be detrimental to his long termemotional development, which far outweighed temporary adjustment to living with father and having no contactwith mother -- Father had struggled successfully to communicate with children for many years, but his conductdid not play part and did not justify estrangement -- Issues identified by children were not grounded in realitybut were figments planted by mother or created by children due to successful alienation -- Only way to guardagainst any ongoing negative influence and to ensure best possible success of re-establishing relationship withfather was to suspend contact with mother for six months, with child’s meaningful participation in therapycondition for re-establishing such contact after court review.

Malhotra v. Henhoeffer (2018), 2018 ONSC 6472, 2018 CarswellOnt 18560, P.W. Nicholson J. (Ont. S.C.J.);additional reasons at (2019), 2019 CarswellOnt 703, 2019 ONSC 527, P.W. Nicholson J. (Ont. S.C.J.) [Ontario]

FAM.IX.2.h


Classification Number: IX.2.h

Custody and access -- Factors to be considered in custody award -- Reports by third parties

Father commenced motion to change final consent order to transfer sole custody of his sons from mother tohimself and to amend parties‘s parenting arrangement -- Father brought motion seeking appointment of Officeof Children‘s Lawyer (OCL) to prepare voice of child report, and alternatively for OCL to represent father‘ssons from marriage, and other corollary relief -- Motion dismissed -- It was not in best interests of children toseek OCL involvement for voice of child report or otherwise represent them -- Arranging for third-party reportwould inevitably re-introduce children to negative effects of ongoing family dispute, which on balance, wouldnot be warranted or appropriate for them in current situation -- Father had express court approval to bringmotion for OCL involvement -- Father was progressing to liquidate his assets with stated view to complyingwith outstanding payment order against him -- Children enjoyed good relationship with parents -- Childrenwere doing well and appeared supported by their family and others.

Siddiqui v. Anwar (2018), 2018 CarswellOnt 21698, 2018 ONSC 7694, Doi J. (Ont. S.C.J.) [Ontario]

FAM.IX.3.a


Classification Number: IX.3.a

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Custody and access -- Interim custody -- General principles

Parties were parents of two children, ages 9 and 11 -- Parties signed separation agreement in May 2017 inwhich they agreed to equal "2-2-5-5" day residential parenting schedule for children as of January 1, 2018 --Mother made unilateral changes to parenting schedule beginning in October 2018 -- Mother took position thatchildren no longer wished to be in equal residential parenting arrangement and that she was simplyimplementing their wishes -- Father brought motion for order that interim custody and access be in accordancewith schedule set out in separation agreement, for order for custody and access assessment, and for order thatchildren attend counselling -- Motion granted -- Existing agreement was binding on parties in absence of courtorder or further agreement of parties -- Mother was not permitted to unilaterally change parenting schedule inface of existing agreement -- If mother believed that existing schedule was no longer in best interests ofchildren her recourse was to apply to court to change schedule -- Custody and access assessment was warrantedto provide information with respect to wishes of children and various concerns raised by mother with respect toconduct of father -- It was also in best interests of children for them to attend counselling.

Blair v. Hamilton (2018), 2018 ONSC 7318, 2018 CarswellOnt 20610, Pam MacEachern J. (Ont. S.C.J.);additional reasons at (2019), 2019 ONSC 622, 2019 CarswellOnt 761, P. MacEachern J. (Ont. S.C.J.) [Ontario]

FAM.IX.5.b.ii


Classification Number: IX.5.b.ii

Custody and access -- Variation of custody order -- Practice and procedure -- Evidence

Parties had three children -- Final order, based upon minutes of settlement, contemplated joint custody ofchildren with primary residence being with mother; it also set out specific parenting time for father and sharingof holidays, etc. -- Father issued motion to change seeking custody of all three children -- Mother filed responsealso seeking custody of all three children -- Father commenced contempt motion against mother alleging shewas in contempt of numerous terms of final order because she was denying father his parenting time onnumerous occasions -- Parties negotiated temporary minutes of settlement that made into order and contemptmotion was dismissed -- Mother then commenced motion without notice to seek suspension of father‘sparenting time as set out in both order and added terms regarding police enforcement, prohibiting parties fromcoming within 300 meters of each other and their residences, and from bringing urgent motions withoutconcrete documentary evidence -- Father brought motion for temporary order for week-about parenting time forparties‘ children pending outcome of his motion to change final order -- Motion dismissed in part -- Officer ofChildren‘s Lawyer was requested to become involved in matter and provide appropriate services -- Orders weremade for custody of children during school holidays -- Parties were to to continue to follow initial, final consentorder, and temporary consent order until further order of court or agreement of parties -- Mother‘s evidence wasthat parties never reconciled and were not together until 2018 and that parties constantly were in conflict andnever shared custody of children half and half.

Smith v. Mamitova (2018), 2018 CarswellOnt 21699, 2018 ONSC 7708, R.S. Jain J. (Ont. S.C.J.) [Ontario]

25





FAM.IX.8.d


Classification Number: IX.8.d

Custody and access -- Access -- Terms of order

Parties began cohabiting in 1996 and separated in 2017 -- Parties had three children together, born in 2003,2006 and 2012 -- Children were in care of mother since separation -- Trial was held to determine issues relatedto access and child support -- Father was granted mid-week access, as it was in best interests of children --Without such access, children would go nearly two weeks at time during school year without seeing father,which was too long -- Parties had agreed to liberal access schedule in 2018 order.

K.A.L. v. P.K.O. (2018), 2018 ONCJ 921, 2018 CarswellOnt 22490, S.E.J. Paull J. (Ont. C.J.) [Ontario]

FAM.IX.8.g


Classification Number: IX.8.g

Custody and access -- Access -- Supervised access

Mother and father had two daughters, L and M -- Parties separated and agreed to joint custody and time sharing-- Father engaged in serious misconduct during access visits and had his time sharing reduced to supervisedaccess -- Father refused to exercise supervised access and had not seen children in more than one year -- Motherbrought application for sole custody -- Application granted; mother awarded sole custody with no access tofather -- Order could be revisited if father met certain conditions -- Father failed to understand that his conductwas causing great harm to children -- Children’s best interests trumped all other considerations -- Therapeuticaccess was requested by mother but that was not in children’s best interests -- Father repeatedly provided Mwith dairy products knowing she was lactose-intolerant and that he was subject to consent order enjoining eitherparent from doing so -- Father spoke of past and future at visits and whispered to children when it was againstrules of access centre -- Father called M liar at supervised visit which meant she required extensive therapeuticintervention -- During some visits father tried to discover facts about mother’s home -- At times during visits,father attempted to discover from the children facts about their mother’s home -- Father criticized mother’sparenting to children -- There was no evidence as to what therapeutic access would consist of and parties werenot able to work it out themselves -- Unsupervised access was not in best interests of children -- Issue was opento review under limited circumstances with costs of preparing plan and therapy to be paid by father.


FAM.XV.4.c

26





Classification Number: XV.4.c

Children in need of protection -- Application for temporary custody -- Extension of temporary order

Child was born in 2012 and lived with mother -- In July 2018, child was located by police in ditch withsignificant injuries following receipt of call from mother that child was missing -- Child was taken to hospitaland listed in life threatening but stable condition -- Mother’s ex-partner was arrested for attempted murder,aggravated assault and other charges relating to incident -- After child’s release from rehabilitation in October2018, child was placed with father subject to supervision by Children’s Aid Society (CAS) -- Access by motherwas at discretion of CAS in consultation with father and maternal great-aunt and uncle -- Mother sought returnof child -- CAS brought application for order placing child in temporary care and custody of father subject tosupervision by CAS -- Application granted -- Child suffered significant trauma at hands of mother’s ex-partnerand was now child with significant special needs -- Mother displayed significant lack of judgment inmaintaining relationship with former partner that considerable harm came to child while under mother’s care --Mother did not demonstrate consistent ability to make sound and appropriate decisions as parent with primaryresponsibility of child -- Child could not be adequately cared for if returned to mother on terms and conditions-- Evidence established that all of child’s needs were met by father -- Terms of mother’s access were continued.

Children’s Aid Society of Peel Region v. M.J. and D.L.R.D. (2018), 2018 CarswellOnt 22252, 2018 ONCJ 905,Lise S. Parent J. (Ont. C.J.) [Ontario]

FAM.XV.5.a.ii.H


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

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

AL and FL were married and parents of four children ("siblings"); siblings resided with FL, father, undercustody order, and were not subject to protection hearings -- Mother AL, had access to siblings undersupervision and discretion of FL -- Mother, had fifth child with JG, born in 2017 -- Mother had long standinghistory of drug abuse and addiction -- Mother was involved and accused in criminal trial -- When child wasborn, mother was homeless and had no solid plan for care of child -- Children’s Society was granted warrant toapprehend child, and it placed child in home of foster parents -- Child was placed in temporary care andcustody of Society on without prejudice basis -- Mother was in jail since May 2018 and scheduled for releaseseven months later -- Ruling was made regarding status of child -- Next of kin, child’s maternal great aunt andher husband were granted custody of child -- Mother was to have reasonable supervised access as designated bykin -- Child was fortunate to have love and support from so many adults -- Kin was supportive of motherhaving relationship with child, despite estrangement -- Kin was supportive of child having relationship with hersiblings in case of FL -- Foster parents provided child with safe and loving home and she was attached to them;but their role as possible long-term caregivers could not be considered unless parent or kin plan was foundwanting; and it was not -- Kin plan would best eliminate any effect of delay in achieving permanency plan mayhave on child -- Child spent ever-increasing time with kin such that period of transition by way of supervisionsorder was not necessary.

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Children’s Aid Society of London and Middlesex v. A.L. (2018), 2018 CarswellOnt 21601, 2018 ONSC 5973,Barry Tobin J. (Ont. S.C.J.) [Ontario]

FAM.XV.7.e.iv.C


Classification Number: XV.7.e.iv.C

Children in need of protection -- Practice and procedure in custody hearings -- Evidence at hearing --Witnesses -- Exclusion of witnesses

Parties had five children -- Judge made order directing parents and children undergo parenting capacityassessment as part of child protection application -- Application made no finding in need of protection order --Doctor appointed to undertake assessment was appointed on joint recommendation of parties -- Parentingcapacity assessment supported Society’s request for extended care of all five children, including two youngestsiblings -- It came to attention of mother’s counsel that doctor was not registered clinical psychologist, butregistered school psychologist -- Counsel for mother sought to have assessment stricken from record on basisthat doctor intentionally misrepresented her qualifications at time she was selected by parties to performassessment -- Society sought to have doctor qualified as "registered psychologist with expertise in parentingcapacity assessments, psychological assessment, and child development" for purpose of providing expertopinion evidence -- Voir dire was held -- Court was not prepared to qualify doctor as expert entitled to giveexpert opinion evidence in proceeding -- Expert opinion of doctor did not meet test for threshold admissibilityas benefits of admitting any or all of doctor’s evidence outweighed potential risks to fact-finding process givenserious reservations as to her qualifications, and her reliability -- Report was struck from evidentiary record onbasis that doctor intentionally misstated her qualifications to judge who ordered assessment -- Fact that doctorhad prepare many such reports in past, and was accepted as expert by other courts was not binding -- Doctorsimply did not have qualifications to complete such report given complexities of issues involved and hereducational and professional background.

Halton Children’s Aid Society v. J.B. and D.T. (2018), 2018 CarswellOnt 21705, 2018 ONCJ 884, Penny JonesJ. (Ont. C.J.) [Ontario]

FAM.XV.7.g.i


Classification Number: XV.7.g.i

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

Parties were involved in family law proceedings in which Child, Youth and Family Services ordered child to beplaced for adoption -- Father began appeal proceedings -- Counsel was unable to contact father after his releasefrom prison -- Appeal dismissed -- Appeal was considered abandoned -- Father had not inquired about status ofproceedings and his family had not been able to contact him -- Appeal also failed on merits -- Parents haddefaulted and father had not presented parenting plan.

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Simcoe Muskoka Child, Youth and Family Services v. Dykema (2019), 2019 CarswellOnt 978, 2019 ONSC 655,Corbett J., Myers J., Sheard J. (Ont. Div. Ct.) [Ontario]

FAM.XX.1.g.i


Classification Number: XX.1.g.i

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

Father was successful on application for custody, child support, division of property and other relief -- Fathermade informal offer to settle at outset of litigation, four formal offers to settle, and continued to try to settlematter without trial -- Mother made two offers to settle -- Mother made false allegations of family violenceagainst father, which she relied upon to withhold access and to subsequently insist on supervised access andsupervised access exchanges, and she falsely reported to police that father tried to abduct child -- Fatherrequested costs on full recovery basis -- Father awarded full recover costs in amount of $249,765.47 -- Fatherexceeded his offers to settle and mother’s offers to settle -- Father took reasonable positions throughoutlitigation to try to avoid trial -- Mother engaged in unreasonable or bad faith conduct in making false allegationsagainst father and providing misleading evidence at trial -- Father’s costs were reasonable and any duplicationor contested inclusion of amounts was encompassed by reduction in fees counsel gave to father -- Fees anddisbursements, including expert fees, were reasonable.

Liu v. Huang (2018), 2018 CarswellOnt 21403, 2018 ONSC 7441, Kristjanson J. (Ont. S.C.J.); additionalreasons to (2018), 2018 ONSC 3499, 2018 CarswellOnt 17206, Kristjanson J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.g.v.B


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

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

Parties were involved in five-day trial in which father was more successful -- Father sought costs ofproceedings -- Father was awarded $15,000 -- Determining that father was more successful than motherreflected fact that issues that related to parenting, as well as equalization and property, occupied largest amountof time at trial -- However, even though father was more successful than mother, mother was successful innumber of important respects, particularly in establishing entitlement to spousal support, accordingly, it wasappropriate to reduce partial indemnity costs of father by 50 per cent.

Valley v. Hay (2019), 2019 ONSC 33, 2019 CarswellOnt 28, P.J. Monahan J. (Ont. S.C.J.); additional reasonsto (2018), 2018 ONSC 6521, 2018 CarswellOnt 18155, P.J. Monahan J. (Ont. S.C.J.) [Ontario]

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FAM.XX.1.g.vi


Classification Number: XX.1.g.vi

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

After parents filed separation agreement with court in Florida where they lived, Canadian father returned toOntario and persuaded mother to move with children to Ontario on promise of sponsorship and financialassistance -- After mother returned to Florida for surgery, leaving children with father, he advised that he wouldnot provide any more financial assistance and so she decided to take children back to live in Florida -- Father’smotion for order preventing mother from removing children from Canada was dismissed; mother’scross-motion for order requiring father to return children to her care and permitting her to return with them toFlorida was granted -- Costs submissions received -- Mother awarded costs in amount of$15,252.74 inclusive --Mother was presumptively entitled to costs as she was successful in establishing that Florida court hadjurisdiction over children and that she should be permitted to return children to that state for any determinationsas to custody of or access to them -- Motions were important to both parties -- Issue of children’s habitualresidence was complex and required detailed consideration of sequence of events that brought motion toOntario with children -- Mother’s conduct, including raising concerns about father’s drug use and herexpectation that he would not seek to prevent her from returning children to Florida after withdrawal offinancial support that induced move and seriousness of surgery that led to them being in his care, was notunreasonable -- Father’s conduct did not amount to such unreasonable conduct as to entitle mother to costs onfull recovery basis, as there was no meeting of minds on amount and duration of financial support that he wouldprovide, and his opposition of children’s return to Florida was not unreasonable -- Reasonable amount of timewas spent by mother’s counsel preparing for motions, but her hourly rate would be reduced -- Amount was fairand reasonable, and within father’s expectations given what he was paying his own lawyers.

Below v. Sheene (2018), 2018 CarswellOnt 18472, 2018 ONSC 6552, Price J. (Ont. S.C.J.); additional reasonsto (2017), 2017 CarswellOnt 489, 2017 ONSC 126, Price J. (Ont. S.C.J.) [Ontario]

FAM.XX.1.i


Classification Number: XX.1.i

Costs -- In family law proceedings generally -- Special costs

Applicant wife was substantially successful, in application for spousal support and related relief -- Wifeclaimed her costs of application -- Husband claimed that his success on related issues should reduce costs award-- Costs submissions made by both parties -- Costs awarded to wife, in amount of $40,000 -- Wife’s offer tosettle on spousal support was less than what she actually received -- Husband’s conduct as evasive witness wasalso factor in costs award -- Conduct reached level of bad faith, for which full indemnity costs were payable --Husband’s lack of forthrightness was responsible for trial having to take place -- Husband could not usefinancial situation as means of avoiding costs award -- Husband had spent some $80,000 in legal fees -- Costswere properly enforced as support, by provincial family responsibility office.

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Majeed v. Chaudry (2018), 2018 CarswellOnt 19422, 2018 ONSC 6977, Mark Shelston J. (Ont. S.C.J.);additional reasons to (2018), 2018 ONSC 4758, 2018 CarswellOnt 13286, Shelston J. (Ont. S.C.J.) [Ontario]

FAM.XX.5


Classification Number: XX.5

Costs -- Custody and access

Parties were parents of two children, ages 9 and 11, and signed separation agreement in May 2017 in whichthey agreed to equal "2-2-5-5" day residential parenting schedule for children as of January 1, 2018 -- Mothermade unilateral changes to parenting schedule beginning in October 2018 -- Mother took position that childrenno longer wished to be in equal residential parenting arrangement and that she was simply implementing theirwishes -- Father brought successful motion for order that interim custody and access be in accordance withschedule set out in separation agreement, for order for custody and access assessment, and for order thatchildren attend counselling -- Parties made submissions on costs -- Mother was ordered to pay father’s costs ofmotion in amount of $7,000, inclusive of disbursements and HST -- Father was successful party on motion andwas entitled to his costs -- Mother acted unreasonably by failing to comply with final parenting plan, byunilaterally attempting to make changes to plan, and in serving her motion material on morning of motion --Father’s fees and disbursements were reasonable and proportional, but were reduced from full indemnity toreflect that father made no formal offer to settle, that mother agreed to some of relief sought, and that mother’sconduct did not rise to level of bad faith.

Blair v. Hamilton (2019), 2019 ONSC 622, 2019 CarswellOnt 761, P. MacEachern J. (Ont. S.C.J.); additionalreasons to (2018), 2018 ONSC 7318, 2018 CarswellOnt 20610, Pam MacEachern J. (Ont. S.C.J.) [Ontario]

FAM.XX.5



Costs -- Custody and access

Parties agreed to joint custody of two children and time sharing -- Father engaged in serious misconduct andhad his time sharing reduced to supervised access -- Father refused to exercise access and had not seen childrenin more than 12 months -- Mother brought application for sole custody and child support -- Father was allowedlimited participation as his pleadings were struck -- Application granted; mother was awarded sole custody withno access to father and child support -- Just prior to trial father brought motion for access which was adjourned-- Father was ordered to pay mother $114,281.39 in costs including $108,781.39 from trial and $5,500 frommotion -- Costs of $108,781.39 from trial were made enforceable as support -- Mother was successful at trialand on father’s adjourned motion for access -- From offers it could be seen that by 2015 parties were all inagreement that mother would have sole custody of children but that was major issue argued at trial, with fathercontinuing to argue in favour of shared custody even though he was not exercising any access by time of trial --Under R. 18(14) of Family Law Rules mother was entitled to her costs on full recovery basis from date of her

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second offer -- While father had behaved poorly his conduct did not rise to level of bad faith as there was nofurtive design or ill will, which was necessary for finding of bad faith -- Father was guilty of unreasonableconduct -- Rare order to strike pleadings was made against father -- Father failed to pay numerous cost awardsagainst him -- Father was unsuccessful in most of motions he brought -- Father’s offer to settle wasunreasonable and he failed to consider mother’s offers to settle -- Father did not properly disclose his income --Father’s treatment of his children was very poor as he said terrible things about mother to them and wasinconsistent in his exercise of access -- Father’s inability to see harm he was doing to his children was one ofmajor issues at trial and for assessor -- Father was guilty of unreasonable litigation conduct and unreasonableconduct concerning his children, which was relevant for setting costs amount for trial -- Relief mother soughtwas ambitious -- Because of principle of maximization of conduct for parents and their children mother hadheavy onus to meet -- Trial took six days -- Counsel fees and time spent were appropriate in light ofcircumstances -- Disbursements were appropriate -- Mother was entitled to costs on full recovery basis.

Van v. Palombi (2018), 2018 ONSC 7291, 2018 CarswellOnt 20668, J.P.L. McDermot J. (Ont. S.C.J.);additional reasons to (2018), 2018 ONSC 6228, 2018 CarswellOnt 17245, J.P.L. McDermot J. (Ont. S.C.J.) [Ontario]

FAM.XX.6



Costs -- Support

Wife was awarded $40,000 in costs from husband on full indemnity basis, in support matter.

Majeed v. Chaudry (2018), 2018 CarswellOnt 19422, 2018 ONSC 6977, Mark Shelston J. (Ont. S.C.J.);additional reasons to (2018), 2018 ONSC 4758, 2018 CarswellOnt 13286, Shelston J. (Ont. S.C.J.) [Ontario]

FAM.XX.6



Costs -- Support

Parties were married for six years after living together for two years, and they had two children -- When partiesseparated children lived primarily with mother, older child then went to live with father but he currentlyprimarily resided with his girlfriend while still receiving financial support from father, and younger child nowlived with father -- Mother worked until first child was born and then she did not return to work, and father’sincome had increased substantially -- Mother had returned to school and earned two degrees, dental assistantand dental hygienist, but she only worked part-time -- Father brought partially successful motion for relief,including terminating spousal support and varying child support -- Parties made submissions on costs -- Motherwas ordered to pay costs to father in amount of $15,000, inclusive of disbursements and HST -- Father wassuccessful party and entitled to costs -- Father made reasonable offer to settle which was deserving of serious

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consideration, and mother made no offer to settle -- Father’s expenses, including cost of expert report, werereasonable and necessary expenses.

Miller v. Miller (2018), 2018 ONSC 6779, 2018 CarswellOnt 22707, D. Summers J. (Ont. S.C.J.); additionalreasons to (2018), 2018 CarswellOnt 14021, 2018 ONSC 5003, D. Summers J. (Ont. S.C.J.) [Ontario]

FAM.XX.6



Costs -- Support

Parties were married for 28 years after living together for three years, and they had three children who were alladults -- Wife left employment after first child was born, she remained at home as full-time homemaker, shewas not employed when parties separated but she had recently taken nail technician course that allowed her toenter apprenticeship program -- Husband worked at mill for 30 years until it shut down, he had been employedby five different employers since his long-term employment ended but jobs did not last because husbandexperienced memory problems and had difficulty performing required tasks of employment -- Husband wasreformed alcoholic but he started drinking again when mill shut down -- Husband had tried find otheremployment without success, and his sole income was $821 per month from Registered Retirement IncomeFund (RRIF) -- Wife brought unsuccessful motion seeking spousal support -- Parties made submissions on costs-- Wife was ordered to pay husband’s costs of application in amount of $22,052.68, inclusive of disbursementsand HST -- Husband was successful at trial and recovery rates for lawyer and junior lawyer were reasonable --Wife should reasonably have expected that costs of proceedings could be significant if she was unsuccessful attrial given that her bill of costs was similar to husband’s -- Husband’s and wife’s financial circumstances weresimilar and wife would be in receipt of approximately $82,000 during next year as part of property settlement.

Schneidermeier v. Bernosky (2018), 2018 ONSC 7052, 2018 CarswellOnt 20616, D.C. Shaw J. (Ont. S.C.J.);additional reasons to (2018), 2018 ONSC 5316, 2018 CarswellOnt 15469, D.C. Shaw J. (Ont. S.C.J.) [Ontario]

FAM.XX.6



Costs -- Support

Father was ordered to pay mother $114,281.39 in costs including $108,781.39 from trial and $5,500 frommotion -- Costs of $108,781.39 from trial were made enforceable as support -- Support was not issue beforemotion at Divisional Court so could not be collectable as support -- Child support and retroactive child supportwere principle issue in proceeding and as such, costs could be ordered to be enforceable as support --Respondent had terrible record of payment of costs -- Non-payment of child support was reason for strikingfather’s pleadings and he still had not paid his costs.

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Van v. Palombi (2018), 2018 ONSC 7291, 2018 CarswellOnt 20668, J.P.L. McDermot J. (Ont. S.C.J.);additional reasons to (2018), 2018 ONSC 6228, 2018 CarswellOnt 17245, J.P.L. McDermot J. (Ont. S.C.J.) [Ontario]

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The Canadian Abridgment eDigests - Family Law - …...Parties, who had one child, age 4.5, separated...

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