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The case for in-person court attendances

Tue, 21 Apr 2026 15:05:11 GMT

Gary Joseph | Apr 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

My friend Steve Benmor made some excellent arguments recently in favour of Zoom attendances on motions (The Zoom paradox: When a judge’s words and his court’s actions collide). He backs it up by quoting the extremely
persuasive comments of Justice Fred Myers of the Ontario Superior Court of Justice. I recognize and respect their arguments but let me address a couple of matters not addressed in their submissions on this issue.

First let me declare my bias: while I certainly enjoy the practical and cost-saving aspects of Zoom appearances, I also enjoy the in-person attendance. Of course, it is not about what I enjoy, but consider these factors:

1. In family law, of which I can only speak, interim motions are not mere procedural stops along the way. There are essential, often determinative attendances that can shape the outcome in a matter, lead to settlement or cause a matter to head to trial to address what one party perceives as an unjust temporary result. All of this is especially so in our current age of long delays to get to trial. The concept of a holding order to get you to trial has been run over in my view by delay.

2. Now the harder argument: yes, Zoom offers costs savings to the client — for sure! Yes, the Zoom attendance offers the lawyer a more efficient opportunity to work while awaiting being called to argue, but what about the long-term costs? What do I mean? As I have argued many times before, I was blessed with the opportunity as a young lawyer to watch and learn from the masters of legal argument who preceded me at the bar. I learned so much about advocacy watching Tom Bastedo, Philip Epstein, Alan Poole, Malcolm Kronby and others argue motions. Today, the lawyer awaiting her or his turn to present usually turns the sound and/or screen off and misses the opportunity to watch and learn. Hence, a generation of young lawyers who, through no fault of their own, often fumble in presentation of argument. A generation who at times do not know the basics of advocacy as they had no role models to learn from. Less skilled advocates cost and delay the system.

3. Consider also the loss of meaningful opportunity to connect with your client in person.

4. Consider also the loss of opportunity to connect with your colleagues at the bar.

I am not dismissing Steve’s argument, and I certainly respect Justice Myers and his opinion. I recognize the need for true access to justice for all. I simply present for argument a few other factors to consider.

You can read this article directly on Law360 .

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP . A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Parental alienation: My final word (for now)

Tue, 07 Apr 2026 19:01:48 GMT

Gary Joseph | Mar 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

My wife claims that in any argument, I always want the last word. Perhaps that is so as I find it almost impossible to leave the final word on Bill C-223 to my adversary (in this argument only) Rina Groeneveld. Please pardon the harshness of this response, but often I cannot help myself.

The series of articles I have published on parental alienation over the last several months have evoked more negative responses than any over the years I have been writing and publishing. The fact that I now write for perhaps a shrinking audience (for approval) only fuels my view that we are losing the battle in this country to forces that do not share my value set. Nevertheless, I urge the reader to review this series of articles by myself and Ms. Groeneveld (see links below) with an open mind .

Ms. Groeneveld attacks my views on parental alienation suggesting they are restricted to my courtroom experience. As a family lawyer with just under 50 years of experience, I find that is a preposterous suggestion. We family lawyers live the lives of some of our clients for years, certainly not restricted to the courtroom. In high-conflict parenting matters, we (professionally) share the trauma of parental child estrangement in multiple ways. We work closely with our clients, the mental health professionals, the assessors, the therapists, the reunification therapists, the teachers and the school administration. We have a bird’s-eye view of the problem. Often, we are the “quarterback” of the team addressing the problem.

Ms. Groeneveld points to her nine years of work with survivors and their children. We know that her practice is largely restricted to women. As family lawyers, we work with “survivors” who are both men and women. Our practices include those who have survived abusive marriages and those wh o have survived losing their child(ren) to unreasonable and unjustified child estrangement. Ms. Groeneveld, are they not all survivors? She talks of the “protective parent” who in her practice is most often a “she.” Ms. Groeneveld, my practice is most definitively split between the sexes. I, lik e most family lawyers, see the problem from all perspectives — not limited, as yours, to “most often she.”

Ms. Groeneveld is critical of me for missing the jargon. I failed to mention “coercive control” nor the “double bind.” Like many who write from her perspective, she hides the flaws in her argument in jargon, the repetition of which they believe lends credibility to same. I am obviously familiar with both terms, have argued many cases involving both but fail to see how my argument is weakened b y their absence in my article.

Finally, she repeats the claim raised in her first article suggesting that lawyers regularly advise clients not to report “credible abuse” disclosures. Really? How do my colleagues in the family law bar react to that claim? That claim does not apply to the family lawyers I know. Please note, Ms. Groeneveld that lawyers among others have a legal duty to report suspected child abuse or neglect (see the provisions of the Child, Youth and Family Services Act). Yes, there are carve-outs to recognize information obtained in the context of solicitor-client relationships (privilege may apply), but a further carve-out exists when disclosure of information is necessary to prevent imminent harm to a child.

Bill C-223 as written should not become law. Ms. Groeneveld greatly underestimates the ability of ou r family courts to ferret out the underlying causes of parent-child estrangement and deliver decisions in the best interests of children. Do not restrict the tools available to them to do so.

See the other columns concerning this issue: Gary Joseph: The politics of parental alienation; Rina Groeneveld: When the language of protection becomes a weapon: Bill C-223 and parental alienation ; Gary Joseph: More on the politics of parental alienation ; Rina Groeneveld: The real issue behind parental alienation claims: A response to Gary Joseph.

You can read this article directly on Law360.

Patel v. Bhatt: A model for child abduction under the Hague Convention

Sun, 22 Mar 2026 16:41:39 GMT

Meghann P. Melito and Isabel Brisson | Mar 2026

International child abduction cases are a matter of great concern to Canadian and international courts alike. The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) was designed to secure the prompt return of children who were wrongfully removed to or retained in any contracting state, and to ensure that the rights of custody and access under the law of one contracting state are effectively respected in the
other contracting states.

The emphasis on urgency is reinforced by Article 11 of the Convention, which states that the judicial or administrative authorities in the contracting state shall act expeditiously in proceedings for the return of
the children. If a decision is not reached within six weeks of the date of commencement of the application, the applicant or the central authority of the requested state may request a statement of the reasons for delay.

In Ontario, this objective is reflected in Rule 37.2(3) of the Family Law Rules , which requires that international child abduction cases under the Hague Convention be disposed of not later than six weeks after they are commenced. The significance of prompt return was clearly enunciated by the Court of Appeal in Leigh v. Rubio , 2022 ONCA 582, stating:

Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues [para. 20].

Yet, despite the words of the Convention, the Family Law Rules and the jurisprudence, litigants too often wait months for their Hague Convention abduction matter to be adjudicated. Such was the case in Leigh v. Rubio . Because of the delay, the court was limited in its remedies; it was “simply too late” to return the child, who was now estranged from his father.

There are significant consequences when child abduction cases are not heard within an expedited timeline. The case of Kovacs v. Kovacs, [2002] O.J. No. 3074 is an older but important example of this. The respondent mother fled Hungary with her children and claimed refugee status in Canada, alleging that the applicant father was abusive and that Hungarian authorities could not provide sufficient protection. The application was heard within seven months, and the court stated that the norm was approximately three to four months. The court rejected the submission that the delay did not harm the applicant father’s interests.

In Kovacs , the refugee claims undoubtedly created a delay; however, Justice Lee Kenneth Ferrier identified an important concern: that an expeditious determination would be impossible if the Canadian refugee screening and adjudication process ran its normal course and thus, the tenet of the Convention would be defeated.

The recent decision of Justice Diana Piccoli of the Ontario Superior Court should serve as a model of how courts should proceed with Convention applications. In Patel v. Bhatt, 2026 ONSC 905, the Kitchener, Ont., court received the father’s application on Jan. 27, 2026. Prior to the issuance of the Hague Application on Feb. 5, 2026, Justice Piccoli convened with Justice Wood from the Ohio court, exemplifying the type of prompt judicial cooperation and expeditious handling envisioned by the Convention.

The parties appeared for a settlement conference on Feb. 5, 2026, and the matter was heard on Feb. 12 and 13. As is common for these types of cases, the parties led affidavit evidence with cross-examination, and the court had the benefit of expert evidence on the immigration issues. Only 11 days following the hearing, on Feb. 24, Justice Piccoli released her decision, ordering the child return to her place of habitual residence, Ohio.

It is essential for both counsel and the judiciary to take note of the Supreme Court of Canada’s direction in Office of the Children’s Lawyer v. Balev, 2018 SCC 16. An expedited proceeding is in the best interest of the child(ren) involved, and as such, applications should be “judge-led and not party driven.” The approach taken in Patel v. Bhatt demonstrates that the six-week timeline is not aspirational; when courts actively manage these applications, they are achievable and advance the Convention’s central purpose.

Even where the six-week timeline cannot be realistically met given intersecting proceedings such as refugee claims or criminal matters, it is nonetheless important to prioritize expediency, provided it does not compromise the interests of justice.

You can read this article directly on Law360.

Meghann P. Melito is a partner at MacDonald & Partners LLP where she has practised family law since 2015. She advocates for clients on all family law issues, but has a particular interest in international family law issues. Isabel Brisson is an articling student with MacDonald & Partners LLP.

More on the politics of parental alienation

Thu, 19 Mar 2026 18:16:39 GMT

Gary Joseph | Mar 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

The recent article by Rina Groeneveld in Law360 Canada is an articulate summary of her position in support of Bill C-223, the Keeping Children Safe Act. Described
by the writer as a “more nuanced” approach to the issue, my view is that,
with significant respect, the article misses the point entirely. She writes
from one vantage point, a former abused woman who provides support to
other women who have shared her lived experience.

OK, stop right now! Before you jump all over me as some kind of misogamist, I have spent a lifetime in practice representing both men an dwomen in family law disputes. I have spoken in support of victims of intimate partner violence at conferences and have advocated vigorously for client victims of same. However, unlike the writer of the article in question, I have seen and professionally experienced this issue from all sides. I have spent hours in court listening to the foremost experts on this subject and have cross-examined many. I have interviewed noted experts in the field for presentation of their evidence on the subject in court. I have read extensively on the subject.

Of particular concern is that the writer seems to be unaware of the recent (relatively) amendments to the federal Divorce Act (that includes the writer’s home jurisdiction of Quebec) and the provincial Children’s Law Reform Act. The very type of conduct that the writer wishes to be addressed in these cases is indeed mandated with the amended provisions of these acts. Further, the writer seems to think that parental estrangement is some kind of gender-specific conduct. It is not. Our courts and this writer have seen it from all sides in all forms of relationships. It is non g ender-specific.

Victims of intimate partner violence do not benefit from one-sided views. Women are very often the victims but not always. Parental misconduct is not gender-specific. Children are always the victims. Parental estrangement cannot be properly addressed by restricting the tools available to judges tasked with sorting out the best interests of children in high-conflict parenting disputes. Bill C-223 contains provisions to silence certain elements in the dispute process involving children. I oppose cancel culture and its continued attempts to have us all “sing from the same hymnbook.”

You can read this article directly on Law360 .

The politics of parental alienation

Tue, 03 Mar 2026 15:07:59 GMT

Gary Joseph | Mar 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Why is everything we do politicalized? Family law is on the cusp of social change, and we have seen many positive developments as a result of meaningful debate. However, I object to the latest attempt to politicalize a frequent issue arising in family law matters by the introduction of a private member’s bill in the House of Commons to banish parental alienation as a matter to be considered in high-conflict parenting disputes.

For me this is a “bridge too far.” It is cancel culture in its worse form. Bill C-223 would ultimately deny a judge in such cases from taking into consideration any allegation that a parent has deliberately manipulated a child into estrangement from the other parent (see s. 4(4) of the bill). Thus, the court would be robbed of its ability to craft remedies for actions that have long been the subject of denunciation in such matters. Somehow this issue — parental alienation — has become a playoff between feminist groups and men’s rights organization. To me this is a silly, harmful and unnecessary battle, but a battle that, in my view, must be won by those opposed to this legislation.

I have witnessed the evolution of the concept of child estrangement over my legal career. The term “parental alienation” was introduced into our legal lexicon by the long dead American psychiatrist Dr. Richard Gardner (in about 1985 I believe) who wrote 41 books on the subject. The concept has spawned endless academic attacks and debate. Gardner’s ultimate death by suicide had nothing to do with the debate, and the debate has raged on since his death in 2003.

I welcome vigorous debate, and I condemn unwarranted attempts to silence it. For me, from a practical perspective, from my long professional life in “the pits” of family law conflict, alienation — or whatever word you wish to ascribe to it — is a gender-neutral concept that at times occurs in high-conflict parenting disputes. It owes no allegiance to one gender or another. Judges of our family courts should be able to consider the allegations of estrangement, alienation or whatever you wish to call in the cauldron of issues that call for evidence and determination in these matters. Over the last 20 years (approximately), our judges have wrestled with this issue and have a produced a body of jurisprudence that spans the gambit of alleged “alienators” of all genders and judges of all genders who have written decisions in these cases. A sample of judicial comment appears below.

Parental alienation, judicial comments

Justice S.R. Clark defined the concept of parental alienation in N.M. v. D.S.M. , 2013 ONCJ 71 as follows at para. 68:

[Parental alienation] is a situation where one parent, consciously or unconsciously, attempts to keep the children from the other. This can occur where one parent has a negative or unsupportive attitude toward the other. This can also occur where one’s conduct and words in the presence of the children demonstrates one’s anger and bitterness toward the other. In circumstances where one consistently denigrates the other, this could tip the balance in favour of such an order [terminating access].

Justice David Price in Lopez v. Dotzko , 2011 ONSC 6778 at para. 109, stated the following:

Parental alienation results from a combination of programming of indoctrinations by one parent adding to and/or colouring a child’s own feelings toward the other parent causing a negative emotional atmosphere between the child and the parent victim.

In Blois v. Gleason, [2009] O.J. No. 1884, at paras. 122-124, Justice Jennifer Blishen referred to Alienated Children and Parental Separation: Legal Responses in Canada’s Family Courts (2007) 33 Queen’s L.J. 79, authored by (my comment: no less than noted authorities) Nicholas Bala, Dr. Barbara-Jo Fidler, Dan Goldberg and Claire Houston, to assist with understanding the parental alienation dynamic. The pertinent excerpts from the article that Justice Blishen refers to are as follows:

In considering the nature of alienating parental behaviour, the authors note that alienation can be either direct or indirect. They state:

Some parental conduct directly fosters a negative attitude in the child towards the other parent, while other parental conduct indirectly undermines a positive relationship between the child and the rejected parent. In many cases there is both direct and indirect alienating conduct.

Direct alienation occurs when one parent actively undermines the relationship between the child and the other parent. One of the most common forms of direct alienating behaviour is the making of derogatory comments about the other parent to the child. (p. 90)

The authors give a number of examples of indirect alienation as follows:

1. when one parent fails to support access or contact with the other parent;
2. when one parent gives tacit approval of a child’s negative behaviour or comments
towards the other parent;
3. when the child is engaged in activities that have the effect of impeding or competing
with access visits;
4. when a parent is consistently late for access drop offs or shows up early for pick ups;
5. when children are told that it is up to them whether or not access occurs;
6. when a child sides with one parent and that parent does not try to dissuade the child
from that position; and
7. when the custodial parent expresses sadness that the child is going on an access visit
thereby placing the child in a conflicted position just prior to the visit. (p. 91)

In X. v. Y., 2016 ONSC 545, paras 104-105, the court accepted the definition of parental alienation as a child’s complete rejection of a parent and uncritical favouring of the other, without justification. The favoured parent encourages the child’s behaviour. Where there is justification for the rejection and no involvement by the other parent in creating or fostering the rejection, the case is one of justified estrangement. Cases of alienation often involve some aspect of justified estrangement. The favoured parent either creates the child’s view of the rejected parent, and/or facilities or encourages it, or does nothing effective to counteract the rejection.

Courts have concluded that expert evidence is not necessary to ascertain whether “alienating” behaviours are taking place. It is a factual finding to be made by the court. A.M. v. C.H. , 2019 ONCA 764, para. 32; Bouchard v. Sgovio, 2021 ONCA 709, paras. 73-75; J.R.D. v. S.B ., 2023 ONSC 46, para. 228; the clinical literature and clinical and academic research have matured so that one can firmly conclude that alienation of children from a parent is emotional abuse of such a magnitude that it can invoke child protection statutes and must be dealt with forcefully and immediately. N.S. v. C.N., 2013 ONSC 556, at para. 123.

In Children’s Aid Society of Waterloo (Regional Municipality) v. K.A.L ., 2010 ONCJ 80, paras. 113(12) and 126, Justice Margaret McSorley found that the emotional harm to the child as a result of the mother’s alienation was more severe than the risk of physical harm to the child in her father’s care. Justice McSorley stated:

The risk of any physical harm from the father is far less than the emotional harm N.L. has suffered and will continue to suffer in her mother's care.

The court is also aware of the issue regarding use of physical discipline. No form of physical discipline should be used on N.L. by any person. In comparing the harm caused by the use of physical redirection used by Mr. R.W.L. (slapping and grabbing of N.L.’s arm) with the emotional harm caused by the mother, I believe the greater risk is due to emotional harm.

In W.C. v. C.E., 2010 ONSC 3575, at paras. 136-138, the court relied on statements made by Dr. Barbara-Jo Fidler with respect to the long-term impact of parental alienation on a child:

The literature also confirms that there are additional negative impacts of severe alienation which include: the loss of one-half of the child’s family; poor interpersonal relationships; a distorted view of reality; low self-esteem (arising from the belief that if one parent is bad and the child is made up of both parents, the child must also be bad); and self-doubt about their perceptions.

Dr. Fidler also noted that in the research conducted by Clawar and Rivlin, which studied 400 cases of alienated children, the large majority of the children reported that they wished that someone would have “called their bluff” and that deep down they wanted someone to make the decision for them and were relieved when someone else like the Judge made the decision for them.

In Fiorito v. Wiggins , 2011 ONSC 1868 at para. 62 and 185, Justice R. John Harper was faced with a family in which an alienation dynamic was present. With respect to the damage that alienation can have on a child, Justice Harper stated:

It is most disturbing that there was a continuum of what I refer to as reality distortions that absorbed the children over almost three years. … I find that the emotional abuse of these children cannot continue. There must be an order that stops their reality distortion…

Some may argue I have curated this sample in favour of my position. There are indeed hundreds of cases, some writers and some judges have indeed attacked the very existence of the concept of parental alienation. I have read some and understand their views. I leave that debate for those much smarter than me and those more engaged in the true academic review of these matters. My argument is against the ever presence, in our world, of silencing those with whom we disagree.

The cancel culture lives and the end result, perhaps after my time, scares me to death. The cancel movement is real and unrelenting. My feeble attempts to push back will have little result but I will continue to speak out. I strongly object to the efforts to prohibit judges in all family courts from considering allegations of alienation. To me, in the hundreds of parenting trials I have done, it is a cross-gender reality that ultimately destroys families and damages children.

Our hard-working judiciary (an incredibly difficult job) must be permitted to shine the light of evidentiary inquiry on these allegations and determine their veracity and their place in the matrix of a fair and just result in the best interests of the child(ren). I rail against any attempt to block these inquiries.

You can read this article directly on Law360 .

The blame hierarchy in family law revisited

Wed, 28 Jan 2026 18:53:42 GMT

Gary Joseph | Jan 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

My loyal readers will recall that I practise family law under the belief that there is a hierarchy of blame that exists in almost all high-conflict family disputes. To repeat, the client begins by blaming the opposite party, thereafter the anger is often directed at opposing counsel followed by the same anger directed at the presiding justice if he/she dares to rule against the client. Yes, the last on the ladder is one’s own lawyer who often bears the scorn of the angry client if absolute success is not achieved on every issue in dispute.

Recently, while on vacation, I again pondered this dynamic and realized I have done nothing in my writings to suggest a positive manner of dismantling this hierarchy. I was triggered by a text received from a good
friend, a senior family law counsel who practises outside the GTA. He asked me to comment on a well-known Toronto family lawyer. My friend was being asked by a client to take over a family law matter from the Toronto lawyer. Apparently, a motion had been lost, and the irate client wanted to change counsel. To my friend I reflected that the Toronto family lawyer in question was an excellent and respected counsel.

To myself, I concluded that the Toronto family lawyer was probably on the bottom rung of a blame hierarchy and was losing a client who had run out of people to blame. Given all of the above, here are some suggestions to avoid the blame game in family law:

1. Do not aid and abet the client who wishes to demonize the opposite party. That does not mean to ignore or dismiss marital misconduct. Only don’t jump aboard that bus without fully vetting the facts and the evidence, and in any event, try not to demonize;

2. The same can be said for opposing counsel. Hide your personal feelings if you lack respect for opposite counsel. If you find opposite counsel so objectionable, don’t take the file. I have a list of lawyers whom I wish to not deal with. My reasons are varied, but I try to avoid expressing some to clients;

3. Judges in family law have a tremendously difficult job. They are generally overworked and understaffed. Don’t personalize defeat with your clients. Provide rational and reasoned responses to your client if the decision goes against your position, and be ever ready to discuss options;

4. Finally, here is the easiest way to avoid the blame game landing on you. I begin with my now famous “do as I say not as I do” qualification. Avoid files where your instincts tell you to. Make sure clients keep current with your billings. Clients who blame don’t pay. Here’s the most important advice: manage expectations at every step and paper your file.

A parting piece of advice: when my children were young, I coached hockey. The league had a standing rule for coaches. Never deal with an irate parent (usually complaining about lack of ice time for their “Wayne Gretzky”) alone. They called it the “two-deep rule.” I have carried this forward in my practice whenever possible. An upset or angry client never gets me alone on the phone, zoom or in a personal meeting. I usually have an associate present or at least a clerk. Note taking in such contacts is essential.

You can read this article directly on Law360.

Establishing gifts and excluded assets in family law: The Court of Appeal weighs in

Wed, 21 Jan 2026 18:31:50 GMT

Michael Stangarone and Isabel Brisson | Jan 2026

The Ontario Court of Appeal recently released its reasons for decision in the matter of Lau v. Tao , 2025 ONCA 819, an appeal addressing a series of property-related disputes arising from the breakdown of the parties’ marriage. The decision addresses intergenerational gifts and trusts in the context of equalization under Ontario’s Family Law Act.

In reaffirming established jurisprudence, the court confirmed a core principle of Ontario family law: a party seeking to exclude a gift from equalization must be able to trace the gifted funds to assets held on the valuation date.

Wing Hong Tao and Mei Yee Lau were married in 2014 in Hong Kong and relocated to Ontario in 2018. During the marriage, both parties benefited from significant financial support provided by their respective parents. This support included funds used to purchase a residential property in Hong Kong. The characterization of this property, and the funds used to acquire it, formed a ground of appeal advanced by Tao.

Before the trial judge, Lau successfully traced the gifts received by her parents during the marriage into the purchase of her one-half interest in the matrimonial home, a Subaru, equity in a condominium and various investments. To support her claims, Lau provided a letter from a solicitor in Hong Kong proving the gift, other documentary evidence and viva voce testimony of her and her mother.

Notably, the trial judge acknowledged that in these circumstances, strict tracing rules should be relaxed, and the court could apply a common sense/sufficient link approach. Lau established that he 50 per cent share of the sale proceeds from their Hong Kong property flowed into assets that she owned as of the valuation date. As a result, the trial judge concluded that those assets were properly excluded from her net family property pursuant to s. 4(2)(1) of the Family Law Act , which permits the exclusion of gifts received from third parties during the marriage.

At trial, Tao argued that Lau lost the right to claim an exclusion of the gifted money used to purchase the Hong Kong property because the property had become a matrimonial home. This argument was rejected by the court. The evidence demonstrated that the property was sold in June 2018, in anticipation of the parties’ move to Canada. On the date of separation, the property was no longer owned by the parties and was not occupied as a family residence. On appeal, the Court of Appeal affirmed the trial judge’s decision, finding no error in the conclusion that the property was not a “matrimonial home” as defined in s. 18(1) of the Family Law Act . In contrast, Tao was not entitled to a similar exclusion, given that he could not provide a comparable tracing analysis.

On appeal, Tao argued that the trial judge erred by allowing Lau to trace 50 per cent of the sale proceeds, as his family had contributed slightly more than 50 per cent of the funds for the purchase. The Court of Appeal rejected this argument, finding that the trial judge made no palpable or overriding error by finding the families’ contributions were roughly equal and that Lau was entitled to trace a 50 per cent share.

The decision also contains a noteworthy finding regarding exclusions to a party’s net family property for Registered Education Savings Plans (RESPs). The Court of Appeal relied on the analysis of Justice Mario Faieta in Labatte v. Labatte , 2022 ONSC 4787, who found RESPs should be regarded as the property of the subscriber for equalization purposes, since they retain significant control over the RESP assets, including the right to withdraw, absent the presence of the three certainties required to establish a trust in favour of the child.

Lau v. Tao underscores that excluded property claims under Ontario’s Family Law Act rely on evidence. Although both parties benefited from substantial support during the marriage, only one was able to meet the evidentiary burden required to exclude gifts from equalization.

Tracing is not a discretionary exercise; it is a prerequisite. However, strict tracing rules may be relaxed where doing so would result in an equitable sharing of the parties’ respective net family properties. In short, the case serves as a practical reminder that in family law disputes, meticulous record-keeping is essential.

Michael Stangarone, partner, and Isabel Brisson, articling student, are with MacDonald & Partners LLP, where they exclusively practise family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Press the button below to read the PDF version, or directly on Law360 .

Some new year's thoughts on family law

Fri, 09 Jan 2026 19:54:17 GMT

Gary Joseph | Jan 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

“The more things change, the more they stay the same.” This famous saying attributed to the French writer Jean-Baptiste Alphonse Karr has been considered by many. Is it so simple? Does nothing really change or is it more thought-provoking: does superficial change often mask unchanging circumstances?

The new year is a time for reflection, even among those not prone to reflection. For those like me, unashamedly prone to reflection and self-reflection, it is an opportunity to publicly share some thoughts about the past and some for the future, all packaged around the practice of family law.

Here’s a short list of things that have changed, and those that (may have) stayed the same:

1. Delay : Back in the Stone Age, when I began practice, we complained of court delays. Nothing has changed. The unchanging circumstances? Governments refuse to properly fund our court system, neglecting an essential pillar of our democracy.

2. Uncivil conduct : Not sure that we called it that in the past, but it persists. The unchanging circumstances? Family lawyers who personalize the dispute, becoming cheerleaders for their clients. The absence of proper boundaries often leads to lawyers behaving like misbehaving clients.

3. The demands of a family law practice (clients): This has changed for the worse. Technology, rather than making our lives less stressful, has cast us into a world of chronically impatient clients and often unrealistic deadlines. The unchanging circumstances? Marital breakdown and separation still are often a soul-destroying process for parties and their children. The blowback regularly falls upon counsel.

4. The demands of a family law practice (administrative): This has changed but remains the same. Regulatory demands continue to add to the stress of private practice and are still a greater burden on the small firm or sole practitioner. Expect this to worsen as CPD demands increase, fees rise, the budget of the LSO swells and regulatory bodies move further out of their intended lane and increasingly regulate politically correct behaviour.

5. Social media and artificial intelligence: Yes, it appears to be radical change. The unchanging circumstances? This is just the continuation of new and ever advancing technology. Before the age of fax machines, we relied exclusively on snail mail, Canada Post. We thought we could never catch up to the speed of practice after losing the ability to blame slow post office delivery for our delay in replying to correspondence. We learned to keep up, as we did when email took over, as we will learn to deal with the introduction of artificial intelligence as a regular part of our practices.

Change is inevitable. Sometimes change is just repackaged experience. Whether real or repackaged, what must never change is our dedication to justice and the interests of our clients.

Happy new year to my colleagues at the family law bar.

You can read this article directly on Law360.

A plea for more respect from family law practitioners

Mon, 05 Jan 2026 17:47:27 GMT

Gary Joseph | Jan 2026

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

It has been a very busy fall and, perhaps like you, I have been hanging on for the Christmas break. For me, it is the best time of the year. In my experience, it is the only time when most if not all family law clients and their lawyers try to step back, take a breath and treat each other with the respect and courtesy that should be a year-round norm.

But all is not so well with me. As I reflect on another year of practice, I have noticed a disturbing trend. I feel that some in our family law circle have lost their way. They have forgotten that they are officers of the court and are expected to behave in a manner commensurate with that distinction.

As officers of the court, we have a duty to uphold the law with specific ethical obligations to the court and the rule of law beyond our client’s interests. This was at one time deemed a sacred duty carefully observed by most of the bar. Recently, I have come to question whether that remains so. Here are but a few of the examples I have observed in the last year:

1. Opposite counsel on a file apparently lied to the court to gain an adjournment for his/her client;

2. On a file heading for trial, a lawyer claimed that he/she did not do trials. The file was transferred to one who claimed to do trials, and their client immediately sought an adjournment of a pending trial as new counsel needed time to get up to speed. However, we later learned that indeed the first counsel did trials and was engaged on a trial when our office sought him/her out on another file. We were deceived;

3. On another file, opposite counsel relied upon an endorsement without advising the court that the endorsement had been later amended to correct a serious error. Reliance on the early endorsement was to the benefit of the lawyer’s client.

Add to the ever-disturbing trend of lawyers in court showing little respect for the court and the orders made, and I am left to wonder where we are going with all this. Inadvertent errors or lack of knowledge I can tolerate and forgive, but lying to the court or opposite counsel or disrespecting the court and/or fellow counsel I cannot. I have long argued that the justice system to which we should proudly count ourselves part of is one of the pillars of our democracy. To permit or tolerate rot from within is inexcusable. Pay attention before it is too late.

You can read this article directly on Law360 .

Child Relocation 2025 Canada PDF Q&A and T&D

Fri, 07 Nov 2025 14:44:17 GMT

Michael Stangarone, Tiffany Guo and Isabel Brisson | Nov 2025

Chambers Global Practice Guides - Definitive global law guides offering comparative analysis from top-ranked lawyers.

Michael Stangarone, Tiffany Guo and Isabel Brisson work on relocation/abduction cases as been published to Chambers Global Practice Guides.

Download the complete article below.

Undermining a costs claim: Costs and conduct in the context of interim parenting litigation

Tue, 14 Oct 2025 15:50:01 GMT

Michael Stangarone and Jessica-Taylor Leaman | Oct 2025

In the recent Ontario Superior Court of Justice decision Singh v. Kaur , 2025 ONSC 4122, Justice Imran Kamal underscored that where litigation arises from the conduct of both parties and neither achieves a substantially better outcome, an award of no costs may be appropriate on account of that unreasonable conduct.

In its earlier decision on the merits, the court granted an interim parenting order establishing the father’s parenting time and imposed a non-disparagement condition, directing both parents to refrain from
speaking negatively about one another in the presence of the child.

Ultimately, Justice Kamal declined to award costs to either party, ordering that each party bear their own costs. This outcome emphasized the court’s discretionary and contextual approach to costs in family law matters,
particularly where success is divided, conduct is mixed, and the paramount consideration remains the best interests of the child.

Following the parenting order, the respondent mother sought costs on a substantial recovery basis. The applicant father argued that no costs should be awarded to either party, or alternatively, that he should receive partial recovery costs. To determine the issue of costs, the court engaged in a contextual analysis exercising statutory discretion, and considering common law principles, and the rules of the court.

The court began by reviewing the underlying principles governing cost awards in family law. The four purposes identified in Mattina v. Mattina, 2018 ONCA 867 frame the modern approach: (1) partially indemnifying the successful party, (2) encouraging settlement, (3) discouraging misconduct, and (4) ensuring cases are handled justly. These objectives. show that cost orders serve as both a compensatory and behavioural tool.

Section 131(1) of the Courts of Justice Act recognizes the court’s discretion in awarding costs. Such discretion is governed but not restricted by the Family Law Rules. Rule 24(1) for example, creates a presumptive entitlement to costs for the successful party however, this is restricted by the principles of proportionality and reasonableness as emphasized in Beaver v. Hill , 2018 ONCA 840. The court also noted that where both parties share partial success, Rule 24(6) allows for the costs to be apportioned accordingly. Rule 24(12) creates a requirement for the consideration of additional contextual factors. Bad faith under Rule 24(10) would require full-recovery costs payable immediately, however, in this matter, there was no such finding.

The court reinforced that assessing costs is not only a simple calculation. The court cited Delellis v. Delellis, [2005] O.J. No. 4345, and Justice David Aston’s guidance was relied on in that the award must be fair and reasonable in the circumstances, and not strictly a reflection of specific expenditures.

To make a costs decision, the court focused the analysis on three primary considerations: success, conduct of the parties and offers to settle.

First, the court found that neither party achieved success on the motion. The respondent mother’s positions changed significantly over time. Initially, she sought only supervised parenting, then she later agreed to unsupervised time, including overnights. In her May 30, 2025, affidavit, she proposed the exact schedule ultimately ordered by the court. However, by the time of the motion, she revised her position to alternate weekends and one weekly overnight, without providing an explanation for the shift.

The applicant father sought a 2-2-3 parenting schedule that was not adopted. The court did not implement a new schedule but instead maintained the pre-motion arrangement that was established in a previous urgent ruling. In determining success, the court emphasized that it is not a matter of keeping score of arguments won or lost. Instead, success must be assessed contextually as directed in Thompson v. Drummond,2018 ONSC 4762.

Secondly, conduct considerations affected both parties. The court had previously found urgency because the respondent was unilaterally dictating parenting time, which made intervention necessary. She adopted unreasonable positions, such as supervised parenting time, only to abandon them later with no justification. Her inability to make a decision regarding what she was seeking forced the father to seek relief.

At the same time, the father’s desired 2-2-3 schedule was rejected in part due to concerns about family violence perpetrated by his parents against the mother. The judge noted that the father remained a bystander to this harmful conduct and that the involvement from the father’s side risked undermining the mother’s relationship with the child.

The court characterized the case as unusual because neither party was successful due to their own conduct. The father failed due to legitimate concerns over family violence involving his parents, and the mother failed due to her unreasonable and vacillating positions. The parenting motion was necessary to bring stability to the child’s schedule, but neither party could claim full success regarding costs. As a result, the court ordered each party to bear their own costs.

This ruling illustrates the nuanced and discretionary nature of cost awards in family law. It reaffirms that costs are not automatic even when one party believes they have initiated necessary intervention
by the court. The decision highlights that unilateral actions, vacillating positions and failure to act reasonably can undermine a claim for costs, even when a party feels justified in bringing or defending a motion.

Furthermore, the ruling reinforces that success is assessed contextually and not merely by comparing endpoints. The overarching discretion of the court will be exercised to advance fairness ,proportionality and the best interests of the child, rather than to reward tactical advantage or formal claims of victory.

Michael Stangarone, partner, Jessica-Taylor Leaman, articling student, are with MacDonald & Partners LLP, where they practise exclusively family law.

Press the button below to read the PDF version, or directly on Law360 .

For the legal profession, some things were better in the not-too-distant past

Mon, 22 Sep 2025 16:15:35 GMT

Gary Joseph | Sept 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Can I have a show of hands, please? Who thinks that uploading cases to Case Center five minutes before a motion is to be argued is civil conduct? Is this even a debatable matter? Believe it or not, recently, opposite counsel
admonished me for even thinking that such conduct is uncivil. When I dared to complain, I was told not to be so “personal”! Oh, where have we gone wrong?

Recently, I had the pleasure of doing a mediation with a very experienced family law counsel. We found time during a long and difficult mediation to trade war stories and jointly lament a time that has passed. After the mediation was completed, we had dinner together. Here’s what we discussed.

Did you know there was a time in the not-too-distant past when the courts basically closed down (but for emergency matters) for July and August? Busy counsel took the time to recharge.

Did you know there was a time when discourse on matters of civility was not necessary? You fought inside the ring (court) and you shared drinks (I drink tea) and stories after.

Did you know there was a time when a delay of a day or two in responding to a call or letter was notmet with angry follow-up emails or threats? You had time to think, plan and consider a response not burdened by the temptation of a “respond all” immediate reply.

Did you know there was a time when a phone call was considered a better way to deal with a problem? Really , lawyers called each other on a regular basis! How strange — not.

Did you know there was a time in the not-too-distant past when being a member of the Law Society of Upper Canada was a matter of pride and a note of distinction? Now, I share my status as a licensee of an organization ashamed (unnecessarily, in my view) of its past.

We live in a world, in a society polarized to the extreme. We need to get back to the centre. Both my learned friend, with whom I enjoyed the difficult mediation, and I believe that a return to some of our past ways may move us closer to better times. And yes, I believe it quite uncivil to serve cases and upload them to Case Center five minutes before a motion!

You can read this article directly on Law360.

Mounting challenges of being ‘the solicitor of record’

Thu, 18 Sep 2025 11:51:22 GMT

Gary Joseph | Sept 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

My friend, lawyer Steve Benmor, hit a home run with his recent Law360 Canada article: “Do judges remember what it was like to be a lawyer?” I will not even try to expand upon his views; there is no need. He hits all the points
I would have made and more. I agree entirely with him. Rather than a “rinse and repeat,” I want, in this article, to reflect and focus on his analysis of the mounting challenges of being “the solicitor of record.”

Steve is a family lawyer, as am I, so I want to qualify that my reflections, consistent with his, come from only a family law perspective. Perhaps, however, the points he makes are applicable across the entire spectrum of
the justice system, and in particular, for those of us who “toil in the fields” of the litigation world, family, civil and criminal.

Here, I pause, to make one of my standard apologies. Sorry, but I significantly miss the early days of my practice of family law (more nostalgia). While there were challenges, we did not have to deal with what Steve describes in his article, one of which is the “never-ending changes in the rules.” For me, the demands of what I call the “practice direction du jour” are maddening. Those who practise in and around Greater Toronto Area courts are constantly tested to understand the often-subtle differences in local practice directions; it is forever frustrating. The need to explain to irate clients things like page limits, limits to the number of exhibits, and delays in scheduling is stressful and unending.

Steve comments on conflict between clients and between counsel. I have written many articles on the issue of civility. I have openly admitted my failures at times in this regard. I must say that despite the many vocal proponents of a more civil approach to family law, I am not seeing any great change. In fact, given the escalating social changes around and the ever-increasing number of lawyers dabbling in family law, perhaps there is less civility. I recognize that this is often directed by clients upset with the justice system and lawyers frustrated by inexperience and their inability to move their cases through the system. I see more barriers to expedited justice today than in the past. Frustration and delay breeds incivility.

I, too, share Steve’s frustration with what he calls “the revolving door of judges” and the occasional absence of professional background of judges sitting in family law. Where is the long promised Unified Family Court? Promises of same remind me of promises related to the Toronto Crosstown subway/transit line. How do you spell NEVER?

Steve quite accurately describes the lawyer who has been mistreated by a client, not paid, whose advice is rejected and then faced with the potential of being forced to continue to represent the client. I had occasion of once being forced to bring a motion to get off the record in similar circumstances and receiving the most awful responding affidavit from the client to the motion. We had to hire counsel to deal with the motion for me.

Sitting in a packed court watching my counsel argue the motion and then listening to the overly angry, self-representing client say the most horrible things about me in front of my family law colleagues was humiliating. To add salt to the wound, the motions judge granted the order and wrote a powerful dismissal of the client’s position, but the client then filed a complaint to the law society. That complaint, ultimately dismissed, was expensive (we hired professional conduct counsel), time-consuming and stressful — all after the motions judge had written a decision clearly favouring our position on the motion to get off the record! It cost the client nothing!

Like Steve, I greatly respect Justice Alex Pazaratz, but we lawyers are not judges. Our lives are quite different. We lack their prestigious position of authority, the respect that judges are usually afforded, their almost entire insulation from mistreatment by clients and the absence of concerns of not being paid by clients. We have rent to pay and staff to keep happy (and pay). Most of us have billing targets. Meeting the administrative demands of the law society are expensive and time-consuming. While judges deal with defamatory postings, they need not worry about false postings that can destroy a long-earned reputation and even destroy a livelihood. They need not worry about a client demanding that they work for free. The position of a judge is difficult and not without stress,
but the analogy to the life of a busy family lawyer is, with great respect, a stretch. Forcing a lawyer to remain on the record should be the remedy of last resort exercised when every possible alternative has been considered. In this context, before such an order is made, the role of the client should also be scrutinized. Obviously, the administration of justice and the possible prejudice to the opposite side are valid considerations, but do consider the overall impact on a lawyer forced to represent a difficult client on a lengthy trial without hope of being paid. Do consider and give considerable weight to the personal and professional impact on that lawyer of that decision. P.S. I have never liked the practice and believe (I hope I am correct) that I have never had a client
sign a free-standing notice of change.

You can read this article directly on Law360.

Doyles Leading Family & Divorce Lawyers – Toronto, 2025

Thu, 17 Jul 2025 12:14:17 GMT

William Abbott | July 2025

William Abbott has been named one of Doyle's Leading Toronto Family & Divorce Lawyers of 2025.

You can review the posted list here

The Doyle's 2025 listing of leading Toronto Family & Divorce Lawyers details Toronto-based solicitors practising within the areas of family, divorce, parenting, spousal maintenance and matrimonial law matters in the Toronto legal market who have been identified by their peers for their expertise and abilities in these areas.

Unique family law issues: Parents with disabled children

Thu, 17 Jul 2025 12:06:29 GMT

Gary Joseph | July 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Some years ago, I was engaged in a case where the family had a severely disabled eight-year-old daughter. The daughter was born with multiple health issues and required both home and community support. The matrimonial home had been retrofitted to meet the needs of her wheelchair and other devices necessary to meet her health issues.

The parents both loved and cherished this special child, but the marriage had broken down for various reasons, and it was necessary to address the usual family law issues. As the case progressed, I learned that the family law issues were significantly impacted by the needs of this child. Of course, a parenting schedule was impacted by the multiple medical issues but so too were other family law issues.

The father wanted the matrimonial home sold. It was mortgage free and the largest asset of the family. The mother resisted, arguing that the retrofit of the home was an essential part of the treatment and care of the daughter. Happily, a compromise was reached permitting the father to take a mortgage on the home to bleed out his equity.
The mother was highly educated and had held a responsible employment position before the child was born. In any other circumstances, an argument to impute income to her for support purposes would have been reasonable, but not here. Outside care for this child proved to be far more expensive than the mother staying home to provide the care. Further, of course, the more personal care of the mother was preferable to third-party care. Agreement on spousal support was reached recognizing the savings in s. 7 expenses (Federal Child Support Guidelines) by reason of the mother’s care as opposed to a paid caregiver.

Fortunately, this special child had special parents who acted truly in her best interests. They bent to the family law challenges posed by the needs of their lovely daughter. That is, of course, not always the case. We are, as I have written many times before, family lawyers, not just lawyers. At all times we must be cognizant of how our actions impact the family, never so much as when the family is dealing with a breakup and a disabled child.

You can read this article directly on Law360.

Passion and the practice of family law

Thu, 17 Jul 2025 12:00:34 GMT

Gary Joseph | July 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

This week I had the pleasure of attending a Toronto Lawyers Association event. It was a lovely evening. I had to leave early for another social event but while there I certainly noticed that I was clearly the oldest attendee. That fact must have been noticed by others as, a number of times that evening, I was approached and asked to comment on what qualities I believed are necessary to make one a good family lawyer. Happily, this is an issue that consumed a fair bit of my time during my tenure (now over, thank G-d) as managing partner of our firm .

First and foremost, when, in the past, I was interviewing a candidate for a position with our firm as an associate, I tried to determine if the individual was just looking for a job or was truly interested in a career. The difference is significant. We only wanted those interested in the latter. The proof is “in the pudding,” as they say, as each one of the current partners in our firm began as an associate with our firm. They each wanted a career with our firm and obviously found one.

A family lawyer, perhaps more than any other specialty practice of the law, must possess, in my view a passion for people and a passion for problem-solving. To me, a new family law file is like a jigsaw puzzle spilled out on the floor. We family lawyers must have a passion for helping the client put the pieces of his/her life back together. As important, this passion must be obvious to the client. Again, as I have written before, there must be boundaries; we are not the client nor a cheerleader for the client, but we must possess that passion visible to the client, to guide the client through the family law maze: to put the puzzle back together.

To be a successful family lawyer, you must possess an analytical mind. You must want to “peel back the skin of the onion” as I call it. What, why, how and when must be a regular part of your vocabulary. You must see beyond the obvious and want to see beyond the obvious. You must relish the challenge of understanding complex issues and yearn for the ability to solve the challenge. Family law is the Rubik’s Cube of legal practice.

Finally, there is no substitute for hard work and a willingness to work hard. However, as I have learned, struggled, but never quite succeeded with, the hard work must be set off with work-life balance. That balance will help you as a family lawyer endure the pressures and stresses of family law practice. I do have lots of enjoyable hobbies but balancing work with life’s other demands has always been a challenge. I find the young lawyers better able to see the import of this than my generation of lawyers. Today, I say this is essential to successful family law practice.

You can read this article directly on Law360.

High-conflict parenting and the unique circumstances of adult children with disabilities

Thu, 22 May 2025 14:04:28 GMT

Michael Stangarone, Nicole Clude and Lisa Chung | May 2025

In the recent Ontario Court of Appeal decision, D.F. v. R.W.F., 2025 ONCA 129, Justice Steve Coroza addressed the issue of parenting orders concerning an adult “child of the marriage.” This decision follows J.F.R. v. K.L.L., 2024 ONCA 520, where Justice Lois Roberts emphasized that the meaning of “capacity” is context-dependent and that there is a rebuttable presumption of capacity, including for an adult child with a disability.

The parties married in 1983 and permanently separated in 2019. The parties had seven children, the youngest of whom is a son (“A”) who was 22 years old with the cognitive age of a three- or four-year-old child and
had Down syndrome (para. 43). After the mother commenced divorce proceedings against the father in 2020, the father was criminally charged as a result of breaching multiple temporary family orders by failing to
return A. At trial, the mother was awarded sole decision-making authority, guardianship and primary care of A.

The father brought an appeal on two grounds, to which Justice Coroza allowed the appeal only in part. If an adult child falls under the definition of “child of the marriage” in s. 2(1) of the Divorce Act, the court may make a parenting order concerning the child of marriage pursuant to s. 16.1. In doing so, the court must consider the best interests of the child.

Justice Coroza dismissed the first submission that the trial judge made a final order without ascertaining A’s views or preferences. The father argued that since the presumption of capacity is situation-dependent as per the court in J.F.R. v K.L.L., so should the question of withdrawal from parental charge under s. 2(1)(b).

The Court of Appeal, in upholding the presumption, found that the presumption was rebutted by the report prepared by Dr. Heintz Grove, a clinical psychologist, and amicus curiae Vasu Naik. Interestingly, the court also emphasized that the presumption is not rebutted merely because the parties agreed that s. 16.1 applies to the adult child; rather, there must be “fresh” evidence (para. 14).

The father further submitted that the trial judge erred by imposing a parenting order that was too restrictive and effectively removed him from A’s life. The trial judge had ordered a scheduled video and telephone parenting time for the father with A, with no possibility of unsupervised in-person parenting time. Moreover, the father was allowed supervised in-person parenting time but solely at the mother’s discretion, despite the high-conflict relationship between the parties.

The Court of Appeal dismissed the father’s first argument that there was no basis in the record for supervised access. For any child of the marriage, the court must consider the best interests of the child as per s. 16(1)-(3) in the Divorce Act. Given the “long-standing and high-conflict matter,” the trial judge emphasized that the court’s responsibility is to protect A from conflict and safeguard his relationship with both parties as well as with his siblings (paras. 7 and 34).

The trial judge’s decision primarily focused on the nature and strength of A’s relationships with each of his parents and his siblings (s. 16(3)(b)), and each parent’s willingness to support the development and maintenance of A’s relationship with the other parent (s.16(3)(c)). The trial judge found that A’s connection with his siblings was “absolutely crucial to him” (para. 37). While the mother facilitated this connection, the father was not willing to facilitate A’s relationship with the mother.

Furthermore, the father was found to have continuously contributed to the conflict between the parties. The trial judge made specific references to instances where the father expected to be able to walk into the mother’s home unannounced, the father sent A to the mother’s home on a bus unbeknownst to the mother, and the father allowed A to continue to face difficulties during parenting time exchanges. The trial judge found the father’s conduct amounted to an inability to protect A from parental conflict and a lack of insight into A’s care (para. 47).

The court allowed the father’s appeal on his second argument that the trial judge did not account for the fact that A will never “age out” of the order — that is, the order will be applicable for the remainder of A’s life with no chance for review. Although the trial judge acknowledged that A would “always remain in a child-like state,” Justice Coroza stated that the trial judge failed to reconcile this finding with the fact that A wants and needs to maintain a relationship with his father (para. 53). Considering the permanency of the trial judge’s order, the court ordered that the parenting access order be subject to review, allowing the father an opportunity to seek to vary the terms of his parenting time without establishing a material change in circumstances.

The decision in D.F. v. R.W.F. marks a positive step toward addressing parenting issues for adult children with disabilities. While both children under the age of majority and adult children with disabilities fall under the same category in the Divorce Act, the decision recognizes the unique circumstances of adult children with disabilities. Further, by ordering a parenting order with a built-in review mechanism, the court effectively balances the adult child’s best interest and the maximum contact principle, in the context of a high-conflict matter.

Michael Stangarone, partner, Nicole Clyde, articling student and Lisa Chung, summer law student, are with MacDonald & Partners LLP, where they practise exclusively family law.

Press the button below to read the PDF version, or directly on Law360 .

Women in the practice of law

Thu, 22 May 2025 13:55:34 GMT

Gary Joseph | May 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Spoiler alert: My daughter is a 2021 call practising with an estate boutique.

I have the pleasure of driving with my daughter to the office about once a week now that her maternity leave is at an end. Her office is quite close to mine in downtown Toronto. She is strong-willed, an advocate for women
in the practice of law, and an advocate for the recognition of work-life balance. I am somewhat thick-headed and old-fashioned, but I do listen to her views and now have been moved by many.

We as a profession are quite rightly proud of the influx of women to the practice of law. The small minority of women in my graduating class in the 1970s has given way to equality of numbers or better in today’s graduating classes. But, as my daughter points out, that is not the test. The test is retention: how women in the profession are treated and how their different needs are addressed.

In my own firm we have many women practising family law and trying to balance the significant demands of the practice with their equally demanding childcare responsibilities. I have seen young associates return from their first maternity leave only to not return from their second. I have seen the demands of family law litigation drive many bright and promising associates, either from the practice or at least from the type of complex family law practice we have at my firm, to less a demanding practice elsewhere.

Talent retention and respect for the diversity of needs of professionals in a law practice are essential elements for the growth and stability of the practice.

Please excuse any trace of sexism; I happily recognize that men have increasingly become more involved in childcare, but my observation is that women still carry the greater load. Thus, we as a profession, hopeful of retention rather than fixated on graduating numbers, must accommodate that reality, or we will continue to shed talented women from the profession. As part of work-life balance (a concept I have personally struggled with for years), law offices should adopt realistic policies not only with respect to maternity (and paternity) leave but follow-up policies for parents upon the parent’s return to practice.

You can read this article directly on Law360.

TJLS Event - ShalOhm: mental health and wellness for legal professionals

Tue, 13 May 2025 16:56:36 GMT

June 4 2025 at 7PM

To register or to find out more, click the links below:

https://bit.ly/TJLS_ShalOhm

fb.me/torontojewishlawsociety

A tactical approach to family files

Tue, 13 May 2025 15:44:24 GMT

Gary Joseph | May 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Some of the best family lawyers I have dealt with over my years at the bar were extremely tactical (most of whom are now retired or have passed away). They approached a file from a strategic point of view plotting the steps that would achieve the stated goals of their client. Most often these lawyers did not approach parenting matters in the same manner, recognizing the vast differences between pursuing financial matters and the best interests of children. These lawyers achieved great success for their clients through planning.

Today, strategy and tactics have become almost profanity in the family law world. I push back somewhat on this view and explain why later in this piece. However, one of the reasons why, in my view, this pejorative view of tactics now prevails in family law is a misunderstanding of the true meaning of a tactical approach. Let’s consider what tactics are not:

Waiting until the very last minute to respond to reasonable requests for consent or timetable extensions where there is no prejudice to your client is not tactical, but rude and uncivil conduct;
Refusing to respond to an offer to settle may be acceptable under the Family Law Rules, but it
is not consistent with the goal of settlement wherever possible and is not tactical;
Uploading case law to Case Centre on the day of a motion is not tactical;
Repeatedly reminding opposing counsel that he/she is the opposite client’s third, fourth counsel is not tactical — it’s arrogant, irrelevant and unnecessary;
Constantly blaming the opposite party or his/her lawyer in letters, written and oral submissions is not tactical but shows an inability to understand that most (certainly not all) stories have two sides and an inability to present nuanced arguments recognizing same;
Taking every opportunity to attempt to embarrass opposing counsel in court is not tactical but uncivil conduct. It is demeaning to counsel who behave in this manner;
Failing to advise opposite counsel of obvious errors in his/her materials is not tactical but rude and uncivil conduct;
Becoming your client’s cheerleader rather than legal counsel is not tactical;
Failing to show proper respect for the bench at all times and especially where you disagree with a ruling is not tactical;
Interrupting opposite counsel’s submissions is not tactical but shows a lack of respect for counsel, court process and a lack of court manners.

Perhaps a tactical approach to family law has fallen into disfavour as it requires hard work and an analytical approach to your file. For those of us who love the game of chess (most certainly family law is not a game), a tactical approach is like chess, thinking at least three steps ahead of your opponent. It is understanding the opposite side’s case and the claims made against your client. It requires a plan for your client mapped out ahead of time. It is proactive, not reactive. I would often tell my clients I prefer to serve (tennis analogy, although I am a poor tennis player) rather than receive serve. In our very busy practices, it is often easy to be reactive, but for most clients, that is a poor strategy. Tactical is seeing the forest for the trees, seeing the best possible result for your client early in the dispute. My list above of non-tactical behaviours is not exhaustive nor do I suggest never being guilty of some such conduct in the past. In considering my list above, I consider that many counsel believe that acting in the manner described somehow impresses their clients, opposite counsel or the court. While the former may be true, the latter, in my view, is never the result. Build your family law practice on a tactical approach to files demonstrating respect for clients, counsel and the courts, and you will never regret that choice.

You can read this article directly on Law360.

Ontario Court of Appeal affirms child support order based on material change in circumstances

Wed, 30 Apr 2025 19:00:35 GMT

Bernise Carolino | Apr 2025

Ruling upholds motion judge's determination of quantum of retroactive support

The Ontario Court of Appeal upheld a finding of a material change in circumstances where the father had less than 40 percent of parenting time during the making of child support orders in 2015, then had over 40 percent since 2017.

In Douglas v. Faucher , 2025 ONCA 293, the parties married in 2002 and had three children. The father has been a quadriplegic since 2010 due to a catastrophic injury. The parties separated in 2013.

A June 2014 parenting assessment report recommended a phased transition to a 50-50 parenting regime by September 2018. The parties divorced in 2015. A January 2015 consent final order imposed parenting arrangements, while a December 2015 order addressed support obligations and property issues.

The parties implemented the first phase of the planned transition to equal shared parenting time in 2016. The father alleged he had 41 percent of the parenting time by 2017, but the mother refused to implement equal parenting time in September 2018.

The father filed a motion seeking shared parental decision-making, equal parenting time, and a retroactive adjustment to child support for 2017 onward based on the parties’ incomes as required by s. 9 of the Federal Child Support Guidelines, S.O.R./97-175. The father earned around ...

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Spousal support and foreign divorces

Tue, 22 Apr 2025 15:55:35 GMT

Gary Joseph | Apr 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Family lawyers have all experienced the frustration of advising a spouse that our courts do not have jurisdiction, either under the Divorce Act or the Family Law Act , to
grant spousal support if a valid divorce has been granted in a foreign jurisdiction. Every family lawyer must be familiar with the Court o f Appeal decisions in Rothgiesser v. Rothgiesser, 2000 128 O.A.C. 302, and Okmyansky v. Okmyansky , 2007 ONCA 427. Both cases support the view that no jurisdiction to grant spousal support exists in the face of a prior valid foreign divorce .

But perhaps not so. I admire Justice Alex Finlayson of our Superior Court of Justice. He consistently tackles difficult issues and his decisions are thorough, well-researched and convincing. So too is his recent venture into the difficult issue of what to do with a party faced with a foreign divorce who needs support and is certainly entitled to support under any analysis of our jurisprude n ce. This entitlement exists but for the foreign divorce and the earlier Court of Appeal decisions.

Justice Finlayson’s case is Rasaei v. Bahman , 2025 ONSC 2074, a matter that proceeded as an uncontested trial after the husband’s pleadings had been struck out. The facts are lengthy (as is the decision). Cutting to the chase, the husband had obtained a divorce in Bahrain. The wife had entitlement to spousal support. With no disrespect, much of Justice Finlayson’s analysis is orbiter . You see he found that the court would not recognize the Bahrain divorce as valid under s. 22 of the Divorce Act and thus he was entitled to grant support under that Act. End of story? Not for Justice Finlayson. He then offers a scholarly analysis of the issue and ultimately concludes that even if the court had found the foreign divorce valid, he could and would have ordered spousal support under the Family Law Act. You must read the case!

In some ways Justice Finlayson’s analysis (in obiter ) reminds me of Justice Mohan Sharma’s obiter in Lang-Newlands v. Newlands , 2024 ONSC 6285, wherein after finding himself bound by prior Court of Appeal jurisprudence, of which he was respectfully somewhat critical, he proceeded to write a lengthy alternative review of the law on estate freezes and their impact on a family law matter. Yes, I recognize the slightly different approach: Justice Sharma, finding himself bound, writes an alternative
theory; Justice Finlayson finds on the facts that he is not bound by the prior appeal decisions, but to much the same effect he takes on long settled law (I thought) and wrote an alternative view respectfully rejecting the earlier accepted jurisprudence. Justice Sharma’s decision is under appeal; to my knowledge, Justice Finlayson’s is not.

There is much to commend both justices for taking on these difficult issues, and their lengthy decisions should be mandatory reading for all — but really, should these important issues not be resolved through legislative initiative? If there is a legislative lacuna in the Divorce Act and/or the Family Law Act , is that not what we elect parliamentarians to do? They pass the laws; the courts interpret and apply them.

In my view, judge-made law can be problematic, especially when “made” by a trial court. The views of Justice Sharma or Justice Finlayson as noted above are well reasoned and compelling but not binding on their fellow trial justices. They are thought-provoking, but it is just as possible that a fellow member of the Superior Court could write a decision equally compelling finding the opposite?

I am reminded of the dispute that raged over the extent of penalties available to be imposed under Family Law Rule 1(8) for breach of a court order. It took a Rules Committee recommendation and an amendment to the Rule to resolve the varied opinions of several Superior Court Justices who weighed in on the issue. Until this occurred, family law counsel were adrift between competing views of the issue. This spells trouble and expense for family law litigants. Such clients need certainty and easily applicable rules so that matters can be resolved without lengthy litigation. We need our lawmakers to step up and legislate where needed to spare our courts having to decide issues that legislation (or amendments to the Family Law Rules) could easily resolve. Five other provinces have amended their provincial legislation to permit former spouses to apply. Why not Ontario?

Finally, read both decisions (Justice Sharma’s and Justice Finlayson’s), as I have, and consider the amount of time and effort that went into writing both. Think about the extreme shortage of judicial resources and the backlogs in our courts

You can read this article directly on Law360.

Arbitration Dilemma

Fri, 18 Apr 2025 19:05:59 GMT

Gary Joseph | Apr 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

How do you get off the record when there is no record??? With court proceedings, when the solicitor client relationship breaks down or conflict arises, a motion is brought to the Court with a request to get off the record. There is much case law that addresses when counsel can and cannot get off the record.

In the 2010 decision of the Supreme Court of Canada in R v Cunningham 2010 SCC 10, the court explores the legal and ethical issues that arise when counsel wishes to withdraw. The court notes that the timing of the request and the reason for the request are relevant to whether an order will be granted to the lawyer. Ethical concerns are likely to result in an order removing counsel, non-payment less so. Proximity to a major litigation event will mitigate against an order. The court confirms the residual jurisdiction of Superior Courts to deal with this issue and notes that statutory courts also have jurisdiction to deal with such motions. I recognize that this is a case in criminal law but the reasoning I submit applies in family law matters.

Now consider the context of a desire of counsel to withdraw from representation of a client in an arbitration. Does the arbitrator have jurisdiction to deal with the request? Can counsel simply write a letter resigning or is a motion necessary? The arbitrator’s jurisdiction flows from the Arbitration Agreement. Rarely do such agreements specify the particular motions that can be brought. But I would argue that like a statutory court the arbitrator has some form of residual jurisdiction to deal with such requests. I strongly suggest that a letter resigning is not acceptable. Section 17 of the Arbitration Act (Ontario) permits the arbitrator to rule on matters of his/her own jurisdiction. Section 20 permits the arbitrator to determine procedure for the arbitration and section 31 permits the arbitrator to apply matters of both equity and law. Surely that combination of statutory provisions plus comments from the Cunningham case would support an argument that the arbitrator has jurisdiction to consider motions to get off the record.

A final point arising from the Cunningham case is the Court’s acknowledgement that both the Courts and the applicable Law Society have a separate and distinct role in consider requests to get off the record. Counsel may get a Court order removing him/herself from the record but the conduct may attract review and possible discipline from a Law Society notwithstanding a court’s ruling!!

The need for co-operation between separated parents

Thu, 10 Apr 2025 20:02:31 GMT

Michael Stangarone and Isabel Brisson | Apr 2025

In the recent Ontario Court of Justice decision, Skiffington v. Parsons, 2025 ONCJ 66, para. 9, Justice Jennifer Daudlin addressed multiple parenting issues, including summer parenting schedules, structured travel provisions and transportation responsibilities. The decision underscores the necessity of co-operation between parents and facilitating parenting time to safeguard the children’s best interests, consistent with s. 24 of the Children’s Law Reform Act.

The parties’ relationship was fraught with issues such as addiction, infidelity, financial struggles and allegations of family violence (para. 29). Upon hearing the evidence, the court made several findings including but not limited to the following findings: that it is a high-conflict case for which both parties are equally responsible, that the conflict is being fuelled by the parties’ supporters, and that it is in the best interests of the children to ensure that parenting terms are clear and structured (para.29).

It is a well-established principle that children benefit from forming close attachments to both parents. Although the maximum contact principle is no longer enshrined in the Divorce Act, s. 24(6) of the Children’s Law Reform Act reflects a similar sentiment: that children should have as much time with each parent as is consistent with the best interests of the child. Here, while the parties have previously filed an agreement respecting decision-making responsibility and the regular parenting schedule to be incorporated into the final order (para. 2), the summer parenting schedule was an issue before the court.

The father requested a week-about schedule. Ultimately, the court agreed that despite any disruption to structured programs such as summer camps, fostering a close and loving relationship between the father and his children was in their best interests (paras. 30-35). The balancing of considerations may have been further influenced by the court’s finding that the mother and her spouse have previously frustrated parenting time (para. 29).

The mother’s position that rigid requirements and requiring the father’s consent for extended travel could limit the children’s opportunities and may lead to delays or conflicts was untenable. The court imposed a 60-day notice requirement for international travel, and mandated consent for trips longer than eight nights to prevent one parent from making unilateral decisions that could interfere with parenting time (para. 40).

Given that both parties and their extended family members were found to have engaged in family violence, the court acknowledged the negative impact that such exposure can have on the children (para. 20). As such, it was not an appropriate situation for a flexible arrangement, and it was in the children’s best interests to ensure parenting terms were clear and structured to avoid potential conflict.

Courts often rule that the access parent is responsible for pickup and drop-off, therefore often consider it reasonable to impose said responsibility on them ( Carss v. Carss, [ 1995] O.J. No. 234, para. 4). Since the mother and children had relocated to Peterborough, Ont., the father had assumed full responsibility for transportation to exercise his access.

While the mother maintained that the father should continue being responsible for all transportation, the court found that this placed an undue burden on the father. It ordered that the parents share the transportation responsibility equally, with exchanges taking place at a midpoint location. Though this is not typical, the Divorce Act and the Children’s Law Reform Act grant the court the authority to order shared transportation responsibility as part of custody and access arrangements (Dookie v Surujmohan, 2017 ONSC 6073, para. 26).

Interestingly, the court also granted the father’s request to be credited for the transportation cost, finding it was a fair adjustment of his past child support obligation (Skiffington, para. 85). The father had made reasonable efforts to request the mother’s co-operation and assistance with transportation but they were refused (para. 85). This decision marks an important acknowledgement that one parent should not bear the entire burden, especially where the parent is taking on substantial costs and has made reasonable attempts for co-operation. Such logistical battles only fuel conflict and may become a fight for power, rather than a concern for the children’s best interests.

The father was unsuccessful in his pre-emptive request to change parenting time should he relocate closer to the children, and the issue was not properly pleaded. The argument that the pre-emptive change would minimize potential conflict and create a smoother transition for the children failed (paras. 47-48). Absent actual evidence of a material change, the position is speculative and does not serve the children’s current best interests (para. 48). This decision represents a reasonable balance of trying to minimize conflict while maintaining stability and prioritizing the children’s immediate well-being. This decision does not however prevent the father from making the motion to change once the relocation has taken place (para. 48).

The decision in Skiffington applies the best interests analysis, underscoring the importance of fostering the children’s relationship with their father and encouraging co-operation between parents. The court sought to minimize potential areas for conflict between the parents to minimize the potential detrimental impact on the children. Further, the court’s recognition that placing such a burden on one parent in the face of reasonable efforts to resolve the issue serves as a clear message that whenever possible, parents must make their best efforts to be co-operative with each other.

Michael J. Stangarone is a partner and Isabel Brisson, student with MacDonald & Partners LLP, where they practice exclusively family law.

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Some thoughts on mental health and civility in practice

Mon, 07 Apr 2025 15:50:51 GMT

Gary Joseph Apr | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Some of you (or maybe more of you than I think) must be tiring of my writings on the issue of civility. I understand, but the longer I practise, the more I see the importance of civility in our family law practice. Today I wish to reach a
little further into this aspect of practice, go somewhat granular, and link civility with the issue of mental health.

It must be obvious to all that mental health issues are increasing almost exponentially in our society. Is it a question of more disclosure and reporting of the problem, or is it the pressures of modern society actually increasing the incidence of mental illness? I do not know, nor do I have the expertise to opine on that issue. What I do know is that I see evidence in my practice and among my clients and colleagues of more mental health issues.

So, what is the linkage between civility and mental health issues in the profession? I believe we can and should recognize the enormous stress that is part of the practice of family law. In the past I have written about my personal “hierarchy of blame” in family law. The parties begin with blaming each other, followed by blaming the other party, then they blame the judge, and then — wait for it, you know where this is going — yes, they blame their own lawyer! This I believe to be true both through personal experience and through multiple discussions with other family lawyers.

The blaming aspect of family law can and often does create stress and anxiety for counsel. Extreme anxiety is a form of mental illness, and continued extreme anxiety can lead to even more serious mental health problems. What then can we do as counsel to alleviate this problem? The answer of course is simple:

1. We can treat opposing counsel with respect and civility.
2. We can constantly remind ourselves that the dispute is between the clients and is owned by them, not counsel.
3. We can insist that our clients treat the other lawyer with respect and try our very best to treat the other party with respect (here I again acknowledge past personal failure on this aspect, and perhaps even the preceding thought relating to treatment of opposing counsel).
4. We must lead by example, insist that court orders are respected and that the court (and staff) is treated in that manner, too.
5. We must not aid and abet frivolous LSO complaints by our clients against opposite counsel.

6. We must be sensitive to the effect of our actions on the opposite party, opposite counsel and, as my mentor James C. Macdonald insisted, sensitive to the effect of our actions on the family. He would often say: “We are family lawyers. Remember that!”

Some concluding thoughts: this article should be grouped with my long line of “do as I say, not as I do (did)” writings. Yes, again, I am a slow learner, but on this I have now “got it.” I am like a reformed addict (perhaps not quite). Civility in practice is essential. Mental illness is a scourge in our community. Let’s do what we can to alleviate it in our profession. Let’s all get onboard.

Final note: Some of my older colleagues at the bar have suggested to me or, yes, behind my back, that my writings reflect that I am getting soft in my old age. Not so. I still believe in and often adopt, in appropriate cases, a vigorous (some may say aggressive) litigation approach, but this is not antithetical to practising with civility. It is not! Those who think so are dinosaurs and should retire. I am not a dinosaur and not about to retire (another ugly rumour circulated by some behind my back). My late dear father used to tell me to “be the best I can be.” I still strive for that, and the adoption of civility in practice does indeed make me better. I am not yet the “best I can be” as a family lawyer. Perhaps another 10 years of trying .

You can read this article directly on Law360.

Family law appeals: Simplify the process

Mon, 24 Mar 2025 15:11:23 GMT

Gary Joseph Mar | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I have previously written about the complexities of family law appeals. I would certainly agree with those who argue that such appeals should be discouraged but let’s all agree that there are times when lower court results are not entirely in accord with accepted jurisprudence and family law litigants should have access to the appeal process to address legitimate concerns.

My friends (in more than the perfunctory court sense) Michael Zalev and Aaron Franks of Epstein Cole, LLP in their highly respected “This Week in Family Law” commented recently on the appeal process in Ontario:

“The appeal routes in Ontario are incredibly convoluted and frustrating, with appeal routes depending on such things as the statute under which the order appealed from was made; whether the order being appealed is final or interlocutory; whether the order being appealed from is from a Unified Family Court, the Superior Court of Justice or the Ontario Court of Justice; the monetary amount being appealed …”

All true, of course. This complexity does not benefit the courts nor family law litigants. It is a legal minefield waiting to blow up in the face of the not fully informed self-represented litigant or family law counsel. Remember it was not too long ago that a distinguished Appeal Court Justice led his support for amendments of these rules and not too long ago that these rules were indeed amended. With no disrespect to those involved, more simplification must now be done and must be done right away. It is largely an access to justice issue. There is not a week that goes by that I don’t either get a request for an appeal opinion with concerns about correct process or more usually just a call from family law counsel seeking my advice on the proper appeal route for a matter. I do not ignore some of the complexities in sorting out these rules but surely, a committee of lawyers and judges, smarter than this writer, could and should come up with a focused, family law solution to this problem with a single articulated route to the appeal process.

This will not encourage appeals as some might argue but instead reduce cost and streamline the process for all. The right of appeal is an essential piece in the rule of law mosaic. Simplifying the process strengthens the rule of law.

You can read this article directly on Law360.

Disturbing events at the Law Society of Ontario

Sat, 15 Mar 2025 13:11:41 GMT

Gary Joseph Mar | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Am I the only one who is bothered by recent events at the Law Society of Ontario (LSO) leading this week to the announcement that CEO Diana Miles is “no longer employed."

Of course, we know that this follows the controversy arising from issues relating to a large increase in her salary. The change in leadership follows the independent review of the matter by highly respected former Associate Chief Justice Dennis O’Connor. So, what bothers me? Well, I feel like a mushroom, kept in the dark and dumped on with sh*t.

T he change in leadership comes after a very secret recent meeting of the benchers. We are told (probably correctly in principle) that the report of Justice O’Connor constitutes legal advice protected by solicitor client privilege and cannot be released. But I ask, shouldn’t we as members share in the information disclosed that led to the parting of ways with Miles? Shouldn’t we as members know what the events were, who was involved in the controversy, and what circumstances precisely triggered the change in leadership? Are we not entitled to know the terms of the release of Miles, what termination package was extended? It is at least partially our membership monies that are being used to fund all of this. Is it just me who feels that there is a significant cover-up happening here?

We all know that the client (here, the Law Society of Ontario) can waive privilege. Not to get too technical, but there are certain events that can trigger a waiver. Why won’t the LSO simply waive privilege and share the report of Justice O’Connor with the members? We, as members deserve to know what exactly went on. Some media suggest that there were internal efforts to stop the investigation by Justice O’Connor! What??? Is that allegation (presently unproven) not enough for the LSO to recognize the need for complete transparency concerning this matter? Was there such an effort and if so, why and by whom?

It is terribly disappointing that this very serious matter is being swept under the rug with promises that they will do better. This from an organization that supposedly represents the rule of law, openness and the right of the public to know. To me this is not an event that will encourage the public to continue to support self-government among the professions. To me this is just one more event in a long line of actions, decisions and policies that have led me to view the LSO in a less than favourable light. I can’t get the thought out of my head…cover up!

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Shout-out to law libraries and librarians

Fri, 07 Mar 2025 16:02:32 GMT

Gary Joseph Mar | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I can’t tell you how important the law library at Osgoode Hall (known as the Great Library) was to me for so many years of my career. First may I say that I am smitten with what I consider to be one of the most beautiful buildings in Toronto. If you have never attended, do so. It is home to the Court of Appeal, judges’ chambers and a law library among other facilities.

The law library is like a set out of a Hollywood movie. For those old enough, think how perfect it would be in the movie like The Paper Chase . Even the smell of the old textbooks in the library to me is intoxicating (reader: you probably think I am losing my mind). I loved sitting in the lovely old-world atmosphere and pouring through law books, reports and journals. In my early years at the bar, it made me feel like a real lawyer! Now I just feel like an old lawyer.

Today of course online reporting services and online research has almost (not entirely) made the library out of fashion, not cool and almost obsolete to some. As a result of my love of the library, every time I argue an appeal at Osgoode, I spend some time in that glorious facility. To the young members of the family law bar, I suggest that you are missing out on an experience that will make you truly feel more connected to the profession and the long tradition of our trade. Take a tour of the building offered I believe only in the summer.

Now let me shift gears somewhat and marvel at the effort many Ontario law libraries have made to stay relevant in this electronic age. In particular, and based on my experience only, I wish to give a shout-out to the Peel Law Library at the Courthouse in Brampton, the York Region Law Library at the Courthouse in Newmarket (known as the Joseph Vale Memorial Library) and the Terence V. Kelly Library at the Durham Courthouse. Each venue has moved with the times offering an array of up-to-date services to lawyers attending court and lawyers in the region generally. Go online and scan the many services available in each. I can also tell you that the staff at each of these facilities is excellent and always ready to help.

No, those libraries do not have that “intoxicating” smell of the Great Library nor the wonderful architecture, but you are denying yourself a valuable tool to better practice if you ignore what these modern libraries have to offer. I would be remiss not to mention that the Great Library also has a wealth of modern services available to make the life of a lawyer easier. Finally, I close by saying that I am sure that these are not the only law libraries in our province that have moved with the times. They are just the ones I am most familiar with.

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Child protection work

Fri, 28 Feb 2025 13:52:09 GMT

Gary Joseph Feb | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I had the pleasure this week of attending by Zoom an event to recognize the accomplishments of Justice Carole Curtis of the Ontario Court of Justice. The event featured her being interviewed by Justice Stanley Sherr (one of my favorite judges) also of the OCJ.

Carole was called to the bar in the same year as I and after about 30 years of private family law practice, she was appointed to the bench. Beyond recognizing her stellar list of accomplishments, I write this article for another purpose. Carole (please forgive my informal address) and I have very different world views and our practices were ultimately very different, but I was pleasantly surprised to hear just how many matters relating to the practice of family law we were ad idem .

Carole noted the need for more mentoring for young family lawyers. She expressed some concern about respect among counsel and civility. She emphasized the importance of child protection work and the benefit she realized both in practice skills and job satisfaction from this mostly legal aid work.

I have previously written about how grateful I am for the years of legal aid work I did in the Ontario Court doing protection matters. I learned most of my trial skills there doing challenging work before specialist judges who lived and breathed family law and were “battle tested” in family law litigation. I learned the rules of evidence, the skills to cross examine witnesses and trial preparation doing this work. Some may now criticize me for having what Carole called a “carriage trade practice” and I accept that, but I put in many years doing the legal aid work that many “carriage trade” lawyers simply refused. I am proud of that.

The practice of law is a privilege. The practice of family law, more so. I still love it, yet I worry about the young lawyers moving into our practice area. I urge you to follow Carole’s example, seize the opportunity to both learn and do meaningful work. Don’t turn away legal aid work. I was moved to hear Carole describe the satisfaction she got from the protection work. While I cannot put myself on her level for such contribution, I understand from what she speaks and suggest young family lawyers follow her example.

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Damages upheld in case where submissions ‘reflected prejudice antithetical to Canadian values’

Fri, 14 Feb 2025 19:22:45 GMT

Michael Stangarone and Kira Beck | Feb 2025

Wang v. Li, 2024 ONCA 819, a recent and interesting decision of our Ontario Court of Appeal, highlighted important principles with respect to several issues including contributions to property, an equalization payment of net family property, and tort damages for domestic violence.

The parties met online in 2012, and Min Li (the respondent on appeal) was living in China with her daughter from a previous relationship at the time. In 2013, Feng Wang (the appellant) travelled to China to meet Li. The parties agreed to marry, and Li and her daughter moved to Toronto to live with Wang shortly after. In the fall of 2013, Li purchased the matrimonial home, which was registered in her name alone. The parties separated in 2017.

Both parties were self-represented and testified through an interpreter during a seven-day trial before Justice Paul Schabas. At trial, Wang sought a divorce, equalization of net family property and a declaration that Li held

title to their matrimonial home in trust for both parties. Li sought a restraining order against Wang, an order for exclusive possession of the matrimonial home and an unequal division of any net family property in her favour.

Justice Schabas dismissed Wang’s claim for equalization and to the extent it was asserted at trial, his claim for support, granted the relief sought by Li, and ordered that Wang pay Li $75,000 in damages for intentional infliction of emotional distress and mental suffering.

The Ontario Court of Appeal noted that the trial judge preferred Li’s evidence where it differed from Wang’s as Wang was evasive and selective in his memory. Wang’s evidence was also often inconsistent with contemporaneous records, and he gave evidence that was demonstrably false. By contrast, the trial judge found Li’s evidence straightforward and responsive and supported on all material issues by contemporaneous records.

The trial judge held that there was no basis to find that Li held any portion of the title to the matrimonial home in trust for Wang and that an equalization payment of any kind to Wang would be unconscionable given:

The period of cohabitation was less than five years.
Li paid a disproportionately larger amount to support the family during the cohabitation, including significantly increasing her debt load.
Wang had signed a Prenuptial Declaration that Li would retain “sole ownership of assets under her name.”
Wang had either provided false financial disclosure or was advancing false claims about his assets at trial.
During cohabitation, Wang demanded money from Li, sought control over her assets and made threats to her if she did not agree.

The trial judge also held that Li was not entitled to either compensatory or non-compensatory spousal support and ordered $75,000 in damages, holding that the harmful effects of Wang’s conduct were “long-lasting and must be condemned.” The issue of tort damages is an emerging one in family,law cases, with the Supreme Court set to weigh in on Feb. 11 and 12 in the case of Ahluwalia v. Ahluwalia (stay tuned).

Wang appealed the trial decision and listed 12 mistakes he alleged the trial judge made in arriving at his decision. The Ontario Court of Appeal stated that Wang’s allegations were repetitive and somewhat confusing and consolidated the alleged mistakes into six main issues.

Wang also sought to introduce fresh evidence on appeal. The Ontario Court of Appeal dismissed the appeal and declined to admit the fresh evidence. Multiple claims made by Wang could not be substantiated as he had failed to file a transcript of the proceedings.

Several of the alleged mistakes by the trial judge related to the trial judge’s findings that, in January 2013, Li received RMB 8,800,000 [approximately $1,200,000] for the sale of her Chinese architecture and design business and repayment of a loan, and that she subsequently used a portion of these funds to purchase the matrimonial home and pay all the parties’ expenses during cohabitation. The court held that Wang had not advanced any arguments to challenge the trial judge’s findings that his claims that he provided RMB 8,800,000 were false and unsupported.

Wang alleged that the trial judge erred in accepting Li’s allegations of domestic violence given that the charges against him were dropped and Li failed to call any witnesses or recordings to support her allegations. He also asserted that the trial judge erred in failing to admit an affidavit from his daughter which stated that she did not observe any domestic violence while living with the couple.

The court stated that where criminal charges are dismissed after a trial, the result in the criminal proceedings is not binding in civil proceedings in which the standard of proof is a balance of probabilities. The order from the trial judge of $75,000 in damages was upheld.

Wang’s final alleged mistake involved allegations of general misconduct and impropriety on the part of Li as well as bias by the trial judge. The court noted that like many of the other alleged mistakes, without a transcript of the trial proceedings, Wang could not substantiate those allegations.

The court made specific reference to Wang’s offensive remarks in his opening statement as noted by the trial judge, as well as his general allegations of bias, prejudice and hostility because the trial judge was Jewish. The court aptly stated, “More importantly, and leaving aside the absence of a transcript, the appellant’s submissions reflect prejudice antithetical to Canadian values. The submissions are reprehensible and have no place in a Canadian courtroom.”

Michael J. Stangarone is a partner and Kira Beck is an associate with MacDonald & Partners LLP, where they practice exclusively family law.

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New Year’s resolution suggestions for family lawyers

Mon, 13 Jan 2025 19:40:40 GMT

Gary Joseph Jan | 2025

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I have often referred to the importance of mentoring and the benefits I have reaped and continue to reap from the mentoring I enjoyed from the late James C. MacDonald, QC. However, I also was the beneficiary of some most helpful mentoring from, surprisingly, (but perhaps not so), family lawyers who were at times aggressive opponents during my career. I am now going to share some of this transmitted wisdom in the form of suggested New Year’s resolutions for family lawyers. Here’s my top 10 suggestions:

1. Jim MacDonald insisted that fellow counsel, no matter how difficult, must (not should) be treated with respect at all times. It took me many years (too many) to “get it” and I regret that, but I do now. RESOLVE to always treat fellow family counsel with respect.

2. The best family lawyers are not necessarily the best speakers but, instead, the best listeners. My late (and wise) father always told me that God gave me two ears but just one mouth and there was a reason for this. RESOLVE to be the best listener you can be, listen to your client, listen to your opposing counsel and listen to judges when in court.

3. Yes, it’s important to be a skillful orator but do not ignore the importance of your written product. Most often, the first impression a judge will have of you comes from the written product you submitted to the court. RESOLVE to work to improve your writing skills.

4. Take the continuing education programs you attend seriously. In this Zoom age, there is temptation to turn it on and then get busy with other matters. Better to attend in person. RESOLVE to personally attend CPD whenever possible.

5. Whether you are a litigator, negotiator or mediator, you need to know that the law as it applies to family lawyers matters. Read the cases, especially those recognized as important. Don’t read summaries, read the cases! RESOLVE to actually make time to read the cases.

6. Be brave and speak out for change where you see change is necessary in the family lawyer world. RESOLVE to take the initiative to bring change where change is needed in family law.

7. Volunteer. Never turn down an invitation to participate in a CPD program. Jim taught me to never say no and until very recently (for reasons I addressed about a year ago in an article published) I never did. RESOLVE to be available whenever asked to present at a CPD program.

8. Watch and learn. I have written about the concerns I have with the loss of in-person court but whenever present take the opportunity to learn from those who are skillful and those who are not. RESOLVE to attend in-person court whenever possible.

9. You have an obligation to the profession to teach the new members of the family law bar. RESOLVE to involve associates in your files and court attendances wherever possible.

10. Finally, the late (and brilliant) Phil Epstein, QC, was very kind to me when he was not trying to “kick my butt” in high conflict matters. Phil mellowed (as we all do) as he grew older, but he was a ferocious opponent as a litigator before he chose to devote his practice mainly to ADR. For years, when in contact with me, he reminded me of his suggestion to use the New Year event to fire your 10 most difficult clients. I initially thought this was one of the many jokes Phil often told, but eventually I understood the wisdom of this advice. Work-life balance is indeed important. Many family law clients are at their worst during a breakup. There often comes a point in the representation that “crosses the line.” We are not obligated to continue for clients who abuse us and/or express a lack of confidence in our skills and/or advice. Gently, respectfully and with a view to their best interests, consider firing these clients. RESOLVE to review your client list in the early days of January and consider the above.

I realize that many of my thoughts above have been presented in a different manner at times in my writings. I do hope, however, that in this summary I have passed along a little of the valuable advice I have received over the course of now 47 years of family law practice.

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The rampant practice of attaching affidavits

Fri, 06 Dec 2024 15:18:28 GMT

Gary Joseph Nov | 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Justice Mohane Sharma’s recent decision in Bah v. Diallo, 2024 ONSC 6500, calls out a practice that I have railed against for years. On a motion for relocation and in response to a request to adjourn, the court had the opportunity to comment on the now somewhat ingrained practice of arguing your motion by affidavit (most often of the client). Many family lawyers now go so far as to include case references and statutory citations in affidavits “argued” by clients. Perhaps I was guilty of this at times, but it really is poor practice and, happily, Justice Sharma directly comments on this in granting the adjournment.

In considering the issue of costs Justice Sharma makes no bones about saying that “affidavits are to contain facts, not argument or legal authorities.” Nothing unclear about this. Stop it! Many times in the past, I have looked forward to questioning on an affidavit wherein the client cites authorities that they likely have no clue what they are about or why the authority is quoted. Lawyers should be embarrassed about this practice, and now we have unequivocal comment from the bench on this practice. Note: as always with these articles, some reader is going to send me a past affidavit prepared by me where I too was guilty of this practice. Mea culpa … now move on and let’s all get this right from now on.

A justice I am particularly fond of based on her years of outstanding work on the bench raised with me recently an ongoing concern of mine (and hers, of course). That is the practice of attaching lawyers’ letters to affidavits. This practice has now become rampant, but other than perhaps arguing for judgment based upon the exchange of letters, (OMG, here I must admit an early loss of mine in the Court of Appeal; see Geropolous v. Geropolous, (1982), 35 O.R. (2d) 763), this practice must stop. A short time ago, I reached out to ask an opposing counsel if he would be getting off the record as he filed an affidavit that was no more than his client attaching six of his long verbose narratives in letter form of events that he had no way of knowing personally, in support of relief claimed on a motion. Opposing counsel was suitability insulted by my request and stayed on.

Your letter is evidence only of the fact that it was sent and perhaps received. The contents are generally hearsay and inadmissible, and you cannot be a witness to a matter that you argue. Stop it. It brings the family law bar into disrepute.

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In-person court and advocacy skills

Wed, 27 Nov 2024 21:43:14 GMT

Gary Joseph Nov | 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

This week I had the opportunity to attend in person a family law dinner honouring this year’s Ontario Bar Association (OBA) award winner for excellence in family law. It was a lovely event and a great opportunity to connect with the many family law colleagues I have grown to like and admire over the years. There was genuine pleasure on all sides to be connecting again in person and trading stories and laughs as we did all those years hanging around court.

Interestingly, again, a constant topic of discussion was young family lawyers and their absence of advocacy skills. All participants in the discussions bemoaned the loss of opportunities for young lawyers to observe motions, trials and appeals in person. The opportunities we older lawyers had to “watch and learn” were denied by COVID-19 and have not been fully reinstated. We older lawyers need to address this issue and we older lawyers have a responsibility to find some solutions to this problem. I have written on this before but now again put forward these suggestions:

Yes, Zoom attendance is convenient and very often time-efficient. The lawyer saves time and the client saves money, but what are the consequences of mentoring? Consider in-person attendance wherever possible.
A now retired but very fine family lawyer told me years ago to always have an associate (we used to call them “juniors,” a now “cancelled” term) with me in court. This was excellent advice for many reasons but in the context of this article, I put it forward as a must for providing the associate with the opportunity to learn and observe. In my last long trial, both senior counsel had associates present, and each associate was given the opportunity to question some witnesses and make some submissions.
Encourage and permit your associates to go to court to observe. For instance, in Toronto, motion days are Tuesday and Thursday. Permit your associate(s) to go and observe whenever possible. They will learn, and you will have a better associate.
Encourage your associates to attend practical CPD programs. My readers know my obsession with the Rules of Evidence. It is never wasteful to have your associates attend CPD on evidence. There are also “watch and do” programs offered by the Advocates Society and of course the summer program at Osgoode on trial practice.

Advocacy, for most of us, is a learned skill. It is also a “use it, or you will lose it” skill. Young lawyers should take every opportunity to “get on their feet” in court. In my youth, I did small claims court trials, landlord and tenant motions and freely took family law legal aid certificates that got me into court.

Finally, the very best advice I can give to young lawyers is to do Child Protection work. Most of this work is on legal aid certificates, but whatever skills I have as an advocate, I owe to the many protection trials I did. You will find that these trials test all your knowledge of the law and the rules of evidence while testing your advocacy skills too. Also, you will be providing an important service to many who cannot afford private retainers.

Interesting side note: I met my wife while doing a protection trial. She was in court as a professional witness and I had to cross-examine her! There is more to that story, but I won’t share it.

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I Surrender

Fri, 22 Nov 2024 21:15:00 GMT

Gary Joseph Nov | 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I write again about a family law phenomenon: The nasty accusatory letter.

I apologize for repeating myself, but a short time ago‚ I wrote about my concerns with respect to these letters, especially in the context of high-conflict parenting disputes. Obviously, either very few read my articles or‚ more likely, many family lawyers chose to disregard the ramblings of an aging member of the family law bar.

Some clients insist on this type of hyper-aggressive approach to family law. They insist on forcing their lawyer to be a conduit for their hateful messages to their now estranged partner. While‚ of course, we are largely creatures of instructions, there must be a limit to where instructions cross the line and we as counsel must say no. If the client won’t listen, we must suggest new counsel.

To those who continue to write these letters: do you not think that at times they are shared with the children by an angry or hurt parent? Do you not think that by memorializing the alleged bad behaviour of one parent you are creating a narrative that if not shared now may be shared in the future either directly or inadvertently discovered?

Why do some lawyers write these letters as if they were eyewitnesses to the alleged misconduct? Why do they not qualify their accusatory ramblings with “I am advised by my client … ?” Were you there, did you see the “horrible” event recounted in your letter? If not, act like a lawyer, not a participant. Act like a lawyer, not a cheerleader for your client.

Many lawyers want to paper their file and‚ to some extent‚ there is justification as at times a court may ask whether the other side was apprised earlier of the concerns. In some instances, perhaps I should have responded and didn’t. But this does not provide a licence to fire off angry accusatory letter after letter to the point where the conflict boils over and years of unnecessary litigation follow.

“I surrender.” What does this mean? Well, I surrender to the many family lawyers who write better accusatory letters than I do. I surrender to the wave of family lawyers who vent their aggressions through these letters. I will no longer surrender to the urge to respond in kind to these damaging letters. Finally, I will not surrender to trying to move the needle to a more collaborative approach to parenting disputes.

Spoiler alert: This article is one more in a long line of “do as I say and not as I do” (more accurately, as I did) articles. Certainly, I have been guilty of what I now accuse others of. But the combination of experience and wisdom that comes with age has convinced me to urge reform.

Second spoiler alert: I have not abandoned my aggressive approach to legitimate family law disputes. I still will litigate with passion what I see as just causes. I simply refuse now to further contribute to the wave of children damaged by high-conflict litigation. This means calling out those who have not seen the error of their ways. Call me a self-righteous s**t if you must.

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Unsuccessful parenting appeal: Attempting to rely on a post-separation status quo, ‘fresh evidence’

Fri, 13 Sep 2024 11:52:16 GMT

Michael Stangarone and Aria MacEachern | Sep 2024

In the recent Ontario Court of Appeal decision of Duwyn v. Ross , 2024 ONCA 637, the appellant unsuccessfully sought to appeal an order made by Justice Michael Valente of the Superior Court of Justice dated May 26, 2023. The appellant also sought to introduce fresh evidence on appeal, which was ultimately dismissed by the court. The case is a helpful reminder to family law counsel that litigants cannot rely on a “parenting status quo” created
post-separation and that fresh evidence is not “new” evidence or a reiteration of the evidence led at trial.

The appellant presented three grounds for appeal:

1. The trial judge erred in ordering equal parenting time.

2. The trial judge erred in instituting parallel decision-making, despite both parties having requested sole decision-making responsibility.
3. The trial judge erred in finding that the appellant had waived her entitlement to retroactive child support.

The Court of Appeal rejected all three grounds of appeal and denied the fresh evidence motion. Both the appeal and the motion were dismissed, and the respondent was awarded costs totalling $12,500.

The first ground of appeal challenged the trial judge’s decision to order equal parenting time in a 2-2-3 shared parenting schedule. The Court of Appeal rejected this ground. After a thorough 10-day trial, the Court of Appeal determined that Justice Valente had correctly applied the relevant law and principles to the facts of the case. Justice Valente determined that the children should not have more parenting time with the appellant solely based on an existing post-separation status quo.

Although the Court of Appeal did not specifically address every factor considered by Justice Valente, the appellate court acknowledged that a variety of factors influence the determination of a parenting schedule. The primary consideration is always the best interests of the child. The status quo post separation where a child spends more time with one of their parents is merely one of many factors a judge must evaluate. Justice Valente took this factor into account, along with others, and concluded that an equal parenting arrangement was in the child’s best interest. The Court of Appeal upheld this decision, finding no legal error or reversible error in Justice Valente’s ruling (para. 10).

The second ground of appeal challenged the trial judge’s decision to order parallel decision-making despite both parents seeking sole decision-making authority during the trial. The appellant argue that she did not have an opportunity to address the option of parallel decision-making. However, the issue was raised and discussed by the respondent through written submissions, reply submissions and oral arguments at the trial. The appellant did not address parallel decision-making in either her written or oral submissions.

The appellant could not then claim that she was deprived of the opportunity to address the issue during the trial. She had the chance to raise the matter in her written submissions and chose not to do so. Similarly, she could have addressed the parallel parenting model (where parents have final responsibility over certain spheres of decision-making such as relating to health or education) in her oral submissions but did not. The Court of Appeal is not a forum for re-litigating issues that were not presented at trial. Moreover, parallel decision-making essentially grants each parent sole authority over specific issues, aligning with what both parties sought during the trial.

The final ground of appeal raised claimed that the trial judge erred in determining that the appellant had waived her right to retroactive child support. The Court of Appeal found that the trial judge’s finding was permissible given that the judge had heard the parties’ evidence and assessed their credibility.

The appellant’s motion to introduce fresh evidence was denied. The Court of Appeal determined that the proposed evidence was merely a continuation of what had already been presented at trial. This fresh evidence pertained to conflicts between the parties, but as established in Cuthbert v. Nolis, 2024 ONCA 21 at paragraph 20, “leave should be denied where the proposed evidence is essentially an extension of the evidence adduced at trial. The proposed evidence would not assist in determining any issue on appeal.”

The appellant also attempted to rely on the decision of Children’s Aid Society of Owen Sound v. R.D., [2003] O.J. No. 3999 (Ontario Court of Appeal). However, the Court of Appeal found this case inapplicable, as it addressed the admissibility of evidence under s. 69(6) of the Child and Family Services Act , which pertains specifically to child protection proceedings. Justice Valente’s order was not made in that context.

This case underscores the rigorous standards applied when introducing fresh evidence. Despite the appellant’s assertions, the Court of Appeal found that the evidence sought to be introduced was not “fresh” but rather a reiteration of trial evidence.

All in all, this case offers a concise and engaging read, shedding light on the criteria for the admissibility of “fresh evidence” and setting out the principles and factors to be considered when determining the merits of a parenting dispute.

Michael J. Stangarone, partner, and Aria MacEachern, associate, are with MacDonald & Partners LLP, where they practice exclusively family law.

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Disclosure revisited

Mon, 29 Jul 2024 11:18:30 GMT

Gary Joseph | Aug 29 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

In my non-deliberate efforts to almost constantly be on the wrong side of many family law issues over my years of practice, I have often railed against overly broad disclosure requests in high-conflict cases. With respect and cautiously, I have not been a cheerleader for the “non-disclosure is the cancer of family law” team. Don’t get me wrong, proper disclosure is essential to fair family law dispositions, but when the issue of disclosure takes over the litigation, as it often does, I have very real concerns.

In a recent edition of their newsletter, family lawyers (and my friends) Aaron Franks and Michael Zalev of Epstein Cole LLP, analyzed several recent cases where experienced family law jurists push back somewhat on the “there is never enough disclosure” mantra. I recommend to you their review of the cases of McDonald v. McDonald , [2023] N.S.J. No. 255, and the cases of Anthony v. Anthony , 2 024 NSSC 100, and Frost v. Frost , ( 2024) O.J. No. 2012.

Let us not forget that some years ago, experienced family law jurists did signal that some restraint on the disclosure issue was indeed necessary. Justice Paul Perell in Boyd v. Fields, [2006] O.J. No. 5762, and Justice S.M. Rogers in Chernyakhovsky v. Chernyakhovsky , [2005] O.J. No . 944, articulated tests for disclosure that called for some caution. Unfortunately, in my view, their caution was soon washed away by the tide of the “cancer of family law” team.

In my ongoing non-deliberate effort to alienate not only justices before whom I continue to appear
but also chartered business valuators, some of whom are my friends and others who are most certainly my professional friends, I also point the finger of critical analysis to those professionals. I respect their standards and guidelines, but often their disclosure requests are a runaway train of over-the-top disclosure requests that escape critical review by judges who rubber-stamp their requests.

The bottom line in all of this is that the damage that overly broad disclosure demands can do to family law matters is real. Disclosure has at times been used to gain tactical advantage. I have written before about strategies that lead to motions to strike pleadings. I will not go there again. I end here by welcoming the voices of reason noted in the recent cases analyzed by Franks and Zalev. Well worth reading and well worth citing in disputed disclosure motions. Finally, some support for the other team.

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The argument against new tort of family violence

Tue, 28 May 2024 16:56:36 GMT

Gary Joseph | May 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

On May 16, the Supreme Court of Canada granted leave to appeal the July 2023 decision of the Court of Appeal of Ontario in the matter of Ahluwalia v. Ahluwalia , 2023 ONCA 476. You will recall that at trial ( Ahluwalia v. Ahluwalia , 2022 ONSC 1303), the court awarded $100,000 in compensatory and aggravated damages for the new tort (created by the court in this case) of family violence. The appeal court allowed the appeal in part, reduced the damages award and refused to recognize the new tort.

Some years ago, I was counsel for a woman badly beaten by her husband before the eventual breakup of the marriage. We carefully marshalled her evidence, presented hospital records, called her doctor to testify and convinced the trial judge to award damages for assault as part of the final disposition of the case. Unfortunately, the monetary award was, in my respectful view, nominal at best and not reflective of the misconduct she had endured. I was upset, but my client did not want to appeal. I still can see in my mind pictures of her badly bruised face and torso (among other injuries she suffered).

When the trial decision in Ahluwalia came out, my first reaction was positive, thinking back to my trial experience described above, but with more contemplation and, respectfully, I became troubled by the creation of this new tort. Before my inbox fills with angry emails, let me explain. Family violence of any kind and any degree is abhorrent, and we must all work together to reduce or stamp it out wherever possible. My concern with the creation of the new tort lies more with the long-term litigation effects of the decision. I have written before on this subject. In an era when we want to reduce high-conflict family law litigation, adding this tort, in my view, increases the likelihood of longer and nastier family law trials while doing little to address the real problem.

When the Court of Appeal refused to recognize this new tort, I (somewhat bravely if I may humbly say so) praised the decision. I say somewhat bravely as I took some pretty serious verbal and email attacks for this position. I stand by that view today. I regret that the Supreme Court of Canada has allowed the leave application but will follow closely the appeal. I strongly support added resources, educational programs and criminal consequences for those who perpetrate intimate partner violence. Much more needs to be done by us as a society to shed light on the problem and root it out. However, I do not see the family law courts as the means to do so. As with the fairly recent amendments to the Divorce Act recognizing domestic violence, these developments put family lawyers to the task of pleading and proving (to the civil standard of proof) allegations of abuse. Not that earlier litigation was devoid of the same. But now more than ever — and if the new tort is recognized by the Supreme Court — an obligation and a greater willingness to plead and take to trial these matters will exist.

I fear five-day trials will become 10-day trials. Victims of this unspeakable behaviour will be forced to relive their abuse and be subject to cross-examination. Already damaged families will be further torn asunder. As with many of my personal views, I do not see our courts as the prime venue to address social change. Yes, they are an important cog in the wheel of social change, but we need to assume responsibility elsewhere. Governments at all levels, our educational system and parents raising young children all have a role to play. That is where change will happen.

Claims for damages are binary in nature. By that I mean they do not lend themselves to compromise results, which are the heart of family law disputes. There is an accused and an accuser. There is little middle ground. How does one mediate such disputes? As someone who has made a career out of trial and appellate advocacy, I am like the general who hates war. More damages claims for domestic violence means more, not fewer, family law trials. Our family law courts are already overburdened, understaffed and without enough judges. How will they cope with the added demands?

Addendum: I acknowledge the views expressed do not recognize the respective legal arguments to be presented. I have approached this issue more from a policy perspective. Other counsel will debate the matter both from a legal and policy perspective in the Supreme Court. I will be a keen student of that process.

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Respect for a system that is vital to democracy

Mon, 13 May 2024 13:37:53 GMT

Gary Joseph | May 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I had the pleasure of attending the Spring Family Law Dinner organized by the York Region Law Association on May 6. Many distinguished speakers presented throughout the evening, but I was particularly struck by the passionate words of Justice Richard Bennett (Ontario Superior Court of Justice). Justice Bennett bemoaned what he sees (from the bench) as a growing lack of respect in his courtroom and otherwise in the profession. His words struck
a deep chord within me, leading to this article.

Political and social discourse surrounds us, and in this tenuous era, I believe that more than ever our democratic institutions must be cherished. I make no apologies for my deep sense of pride in being a lawyer and participating in the justice system, an essential element of our society. While not perfect, the justice system is a pillar upon which the rule of law governs us. It must be protected, nourished and improved where necessary, but at all times, it must be respected, especially by those of us who serve within it. The current lack of respect in his courtroom so eloquently focused upon by Justice Bennett is but a microcosm of what I observe in the trenches of family law. When counsel show disrespect to each other, disrespect the court and disrespect rulings of the court, they undermine the essential role of the justice system. When clients observe counsel showing disrespect, what are they to think? What are they to feel when those within the system do not honour it and show deference to its process and its rulings?

Please do not misunderstand my views. There is enormous room for improvement within the system, but as with many trends in our world, you should not tear down with no plan to rebuild or improve. Justice Bennett made a point last night that, I believe, all counsel should be reminded of; Justice Bennett does not ask that the respect he seeks is personal to him but is to the system, the court and the institution. A perfect capture of the heart of the issue here. Counsel, regardless of the conflict between the clients, regardless of personal views of the Justice or their rulings, must see the vital essence of the need to buttress, not tear down, a system that has served us well for over a century. A system that has roots in a common law system with many centuries of vital service to democracy, flowing from its roots in the United Kingdom, should be preserved.

What can we, as family lawyers “toiling in the fields of matrimonial discourse,” do to better serve this system? I, again, (sorry) return to my plea for better civility among counsel; the fight is the clients’ not their counsel. We are officers of the court, and the court is fully entitled to and must be shown respect by counsel as a clear message to our clients, the public, that it is worthy of that respect. Anything less is a shame on counsel and must not be tolerated by the court. It must not be tolerated by other counsel. Last night, at the dinner, a number of lawyers suggested to me that my writings are too focused on the past. Perhaps, but where the past shows a better way forward, why not harken back to it?

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Imposing sanctions for breaches of family court orders

Tue, 26 Mar 2024 18:05:11 GMT

Michael Stangarone | March 2024

Does a court have jurisdiction to impose a monetary penalty or fine pursuant to Rule 1(8) of the Family Law Rules in the absence of a finding of contempt? There is a conflicting line of family law cases with respect to this emerging issue.

Rule 1(8) of the Family Law Rules provides broad discretion and authority to courts to make orders it considers necessary to fully address a litigant’s failure to comply with court orders. Rule 1(8) states as follows:

Failure to obey order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

Notably, courts can make “an order for costs” under Rule 1(8)(a). The language of this provision differs from that of the contempt provisions under Rule 31(5), which expressly provide courts with the authority to impose a penalty or fine against a party who has been found in contempt of the court:

Contempt orders

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

Prior to being repealed in 2014, Rule 1(8) was formerly Rule 14(23) which was also relied on by the courts to impose a daily monetary penalty or fine on parties who were noncompliant with court orders. In Mantella v. Mantella , 2008 CanLII 48648 (ONSC), the husband was previously ordered to produce various disclosure by a specified date, failing which he would have to pay the wife a daily fine of $2,500 until he complied. The husband eventually complied but did so 74 days after the court-ordered deadline, and the wife brought a motion to enforce the total payment of $185,000 ($2,500 x 74 days) owed by the husband. Justice Francine Van Melle granted the wife’s motion.

The husband appealed Justice Van Melle’s order to the Court of Appeal, arguing that the lower court lacked jurisdiction to impose a monetary fine or penalty without a finding of contempt. The Court of Appeal in Mantella v. Mantella , 2009 ONCA 194 did not clarify the issue, although it acknowledged that the question was important (para. 23). The husband’s appeal was ultimately quashed because the order was interlocutory.

Judicial treatment of this issue has varied since Mantella to date. More recently, Justice Sharon Shore granted an order imposing a daily monetary fine/penalty pursuant to Rule 1(8) in DiPoce v. DiPoce,

2022 ONSC 2099. On the other hand, Justice Mario Faieta in Altman v. Altman, 2022 ONSC 4479 and Justice Melanie Kraft in Monga v. Monga , 2024 ONSC 761 both found they did not have jurisdiction to do so.

In DiPoce , the wife asked the court to order a financial penalty for each day that the husband remained in breach of court ordered disclosure. Justice Shore found that the husband had not complied and agreed with the wife, finding that Rule 1(8) gave her the authority to make such an order for a daily financial penalty of $2,500, citing a number of cases, including Mantella (paras. 15 and 16).

In Altman , among other things, the wife asked the court to order a daily sum of $3,500 to be paid to her for each day the husband remained in non-compliance. Although he found that the husband failed to comply with numerous disclosure obligations, Justice Faieta did not agree that he had jurisdiction to make an order imposing a daily penalty under Rule 1(8).

Justice Faieta relied on the Ontario Court of Appeal’s decision of Bouchard v. Sgovio, 2021 ONCA 709. For the majority, Justice David Paciocco questioned whether remedies provided for under Rule 31(5) can be imposed by a court under Rule 1(8) absent a successful contempt motion as contemplated by Rule 1(8)(g).

In dissenting reasons, Justice Ian Nordheimer commented that there are necessary limits on the kind of orders a court may impose under Rule 1(8) because certain types of orders require procedural safeguards to the person who is subjected to any such order. He stated, “[I]n cases where penal sanctions are sought, those safeguards are provided for by r. 31 of the Family Law Rules . Procedural safeguards are not to be avoided simply because it is more convenient or more expedient to do so.”

(Paras. 101 and 102)

Justice Faieta agreed with the dissenting reasons, stating at paras. 43 and 44:

“I adopt this view. While there is a pressing and growing need for the efficient, effective and timely management of family law cases, the need for fairness requires placing limits on the broad authority provided by Rule 1(8) to impose a remedy for non-compliance with a court order.

There is express authority to order a person to pay fine or penalty under Rule 31(5) of the Family Law Rules if that person is found in contempt of the court for failing to comply with an Order. A finding of civil contempt requires proof of the following elements beyond a reasonable doubt […] These heightened requirements and the procedural safeguards provided by Rule 31 are avoided if Rule 1(8), which has no such requirements or procedural safeguards, is used to impose a penalty upon a party for non-compliance with an order.”

Justice Kraft in Monga cited Justice Faieta’s reasons in Altman when dismissing the husband’s request to impose a penalty of $250 per day on the wife until she cured her breaches of previously ordered disclosure.

The reach of remedies under Rule 1(8) is an important consideration when addressing non-compliance with a court order, particularly where contempt is a remedy of last resort. While there is conflicting jurisprudence specifically with respect to whether courts have jurisdiction to order a litigant to pay a fine or penalty to address non-compliance with disclosure orders absent a formal finding of contempt, our position is that courts do have the discretion to make these orders and should make these orders to address the vexing issue of non-compliance with court orders. Further, contempt motions are far more onerous and expensive for family law litigants to seek relief in the event of the other party’s noncompliance.

Michael Stangarone is a partner and Tiffany Guo is an associate at MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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Family law disputes are between clients, not counsel

Fri, 15 Mar 2024 00:36:04 GMT

Gary Joseph | Mar 2024

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

The recent case of China Yantia Friction v. Novalex Inc., 2024 ONSC 608 , is must reading for all counsel who appear in our courts. Justice Charles Chang of the Superior Court of Justice heard this matter in person on Jan. 9, 2024 and released his decision on Jan. 26, 2024.

In this case the applicant sought recognition and enforcement of a commercial arbitral award. The respondent opposed the application arguing that it was unable to present its case at the arbitration and further argued that recognition or enforcement of the award would be contrary to public policy. You may now ask why this case is must reading for all counsel. The substantive issues raised in the case are of no concern to me, however, my focus relates to Justice Chang's admonishment of counsels for the applicant. Paragraphs 20 through 27 of the decision form my focus.

Justice Chang noted that during the hearing counsels for the applicant conducted themselves inappropriately. It was noted that "during opposing counsel submissions... among other things, eye-rolling, head shaking, grunting, snickering, guffawing and loud muttering" were observed from counsel's table. It was further noted that at one point one of the applicant's counsel leaned back in his chair, threw both hands in the air and proceeded to laugh"... in a gleeful moment of triumph."

Justice Chang noted that unfortunately "the behaviour engaged by counsel is neither new nor a rare phenomenon. Too often, counsel seemed to believe that enthusiastically attempting to disrupt and/or

demean the opposing counsel during the latter's oral submissions is one of the hallmarks of an effective advocate. It is not."

Justice Chang then brings his comments into clear focus for those not paying attention. "Counsel's submissions to the court are to be made in only two ways: written argument or oral argument. No proper submissions are made by way of emanations from counsel (be they oral, non-verbal, audible or inaudible) when another justice participant is speaking."

The rest of the endorsement continues with most helpful comments with respect to court etiquette concludes noting that "it has long been a tradition in requirement of etiquette in our courts that counsel refer their counterpart as their 'friend.' While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility. All counsel would be well advised to always keep this top of mind, lest the already threadbare state of professionalism and civility between them deteriorate into the irredeemable."

It is here once again, that I urge the readers to note, do as I say not as 1 do. After reading the decision I immediately racked my brain in wonderment as to whether I have ever been guilty of the conduct noted. Sadly, I believe that (historically only) it is a real possibility. I welcome this much-needed reminder to all counsel of the extreme importance of courtesy, respect and civility in our court process. I must often remind myself, even in the most heated family law dispute, the dispute is among the clients, not counsel. I am reminded by many of my friends and colleagues who have been appointed to the bench that the court fully expects and most appropriately demands civility in the court system. If we as lawyers wish the public to respect what we do the admonishments of Justice Chang must remain central to our representation of our clients.

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Sibanic v. Dupuis - Reasons For Decision

Mon, 18 Dec 2023 13:22:21 GMT

Michael Stangarone | Dec 2023

Justice Marc Smith's decision in the recent case of Sibanic V. Dupuis FC-23-1491 has been made available for download.

Click the link below to read the PDF of the decision.

The Truth Matters

Sun, 22 Oct 2023 14:00:12 GMT

Gary Joseph | Oct 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Family lawyers consider the truth of our client's claims every day. It is part of the process we engage in of weighing the merits of the case that we may have to present in court. I quickly note that we are not the judge of the truth, but our task involves assessing the information we receive to better advise our clients on a go-forward strategy. The truth matters and our job involves drilling down to find it.

This week we lawyers had a fine example of the steps necessary in the process of truth determination arising from the continuing tragedy of the war in Gaza. Again, I feel compelled to assure my readers that the death of innocent civilians, Israeli or Palestinians, is abhorrent to me. All victims of war must be mourned with equal regret. However, the explosion at the hospital in Gaza is illustrative of how the truth of an event can be twisted, and how one can push back against falsehood and establish the truth of an event.

Immediately after the explosion became known, the anti-Israel voices were out condemning the Israel Defence Forces (IDF) for "war crimes" against innocent civilians. Some of our well-known politicians jumped on the bandwagon as did many prominent newspapers. In contrast, the IDF and Israel quickly conducted a granular examination of the forensic evidence available and then presented, in the manner of a skilled trial lawyer, its case. Careful charts were submitted, videos obtained from overhead drones were presented, alternative theories of causation were discussed and analyzed. Thereafter, the IDF representative presented Israel's conclusion to the listening audience. Please forget for the moment the politics of this. This was a stellar performance.

I cannot say for certain that the Israeli position is correct, but I would argue that the analysis presented, evidence based, would at least pass the civil test of a balance of probabilities and perhaps even the criminal test of beyond a reasonable doubt. This is a valuable lesson in advocacy. In this case the court was the world stage, but the presentation was what can be expected in our courts of law by experienced counsel. Take this opportunity to integrate this approach into the analysis of the claims and "evidence" presented to you by your clients and those of the opposite party. Conduct the granular examination of it, discard what is not credible, consider the case your opponent will present and your answer to it. Organize your presentation to the court in the manner described above.

Let me conclude with what I have preached to our associates for years. Court or arbitration is the last alternative to the many ways that family disputes can be resolved. But for those few and far between cases that go to trial, your job as counsel is to try to convince the court of the justice of your client's position. Don't go to court just to go to court!

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Bad Practice: Bron v. Thompson

Fri, 13 Oct 2023 21:02:17 GMT

Gary Joseph | Oct 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I read this case recently, Bron v. Thompson , 2022 ONSC 5674, wherein counsel for the respondent received a stinging reprimand from the presiding justice for breaches of the practice direction relating to page limits, attachments and spacing together with attempts to file beyond the court's timelines. These actions were described as "bad practice" by the presiding justice and who could argue with this description.

But as dedicated family lawyers, should we leave it at that? Those who know me well or who read my rantings know that it is simply not possible for me to "leave it at that." I may now venture into dangerous space but here goes ...

With absolutely no disrespect meant to the presiding justice in the Bron case nor to the bench in general, I am growing tired of the blame for the problems in the court system being constantly downloaded to counsel. Yes, there are bad counsel and yes practice directions are not, as stated in Bron by the justice, suggestions," (a borrowed phrase from a very well-known case relating to compliance with court orders) but can we not somehow share some of the blame for problems and delays in the court system? Let me begin:

1. Judges: yes, we desperately need more and delays in appointments cannot be tolerated.

2. Family court: we must have a Unified Family Court system provincewide. Where have our past crusaders for this gone? Perhaps I am now out of the loop and the lobbying continues but to me the issue has gone cold and silent.

3. Practice directions: With technology, the province has grown smaller. Family lawyers can practise in many regions not just their home base. As Toronto counsel in our firm, we attend all the Greater Toronto Area (GTA) courts and some outside the GTA. Obviously to practise in multiple regions one needs to know the local practice and the local practice directions. But should we not try to standardize practice directions such that as near as possible there should be uniformity throughout our family courts? Would that not help reduce the problems faced in Bron and other cases and reduce costs incurred for unnecessary refiling and reattendance? Do we not want to do everything possible to reduce the costs of litigation? I suggest standardized practice directions would assist.

4. Court office staff: In my experience these employees are generally underpaid and overworked but in fairness there are many who are simply undertrained. Our senior clerks at our office are often left in fits of frustration by court staff who do not seem to fully understand the process and the importance of co-operating in the interests of the client rather than simply dressing down hard-working clerks.

I have great respect and sympathy for family law judges who daily must endure listening to tales of woe and suffering often pitched to them by either self-represented litigants or poor and/or underprepared counsel. However, these judges applied for the job. They wanted positions on the bench and for the most part they reserved appointment. If they are overworked or understaffed, they must find remedies for that within their bailiwick. They must realize and/or not forget that the practice of family law is an extremely difficult practice area. Many lawyers appearing before them do not have the luxury and privilege of a practice such as mine (fully staffed with many skilled associates and clerks, plus great knowledgeable partners). Many are sole practitioners sincerely trying to do their best for the client, often dealing with difficult clients and difficult situations.

Dressing down a lawyer should be well down the list of duties of a presiding judge, and that judge should be cognizant of the repercussions of same. Again, I do not countenance bad practice but let's not forget that we are a team. Yes, a team. The judge, the court staff, the lawyers - we are all there to serve the clients, who in family law, are experiencing a horrible life event. Rather that blaming, we should be finding ways to support each other as members of a team. If there are problems, let's fix the problems together rather than blaming.

Judges are entitled to respect for the job they do. Court staff are entitled to respect for the job they do. But so too are lawyers who for the most part are doing the best they can, often in difficult circumstances. My experience over the past 46 years is that the family law bar is made up of outstanding hard-working individuals who have been, for too long, subjected to blame from the bench, the court staff and the clients.

No one appointed me to speak up, I simply can't help myself.

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Hague Convention in the celebrity spotlight

Mon, 02 Oct 2023 12:48:20 GMT

Kristy Maurina | Oct 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

If you are a follower of celebrity headlines, then no doubt you have read all about the recent separation of

Sophie Turner and Joe Jonas. While their separation may come as a shock for some (including Turner, who apparently learned through social media that Jonas had officially filed for divorce, which he disputes), the bigger shock has been Turner's claim under the Hague Convention, arising from her allegation that Jonas has wrongfully removed or wrongfully retained the children (two girls) in the U.S. since Sept. 20, 2023, from their habitual residence in England, and seeking the girls' return.

Whether you're on Team Sansa (The North remembers) or team Jonas, one thing you may find yourself asking is what is the Hague Convention that is suddenly in the celebrity spotlight, and how is it relevant to their separation?

While I practise all areas of family law exclusively, I have a particular interest and specialization in Hague Convention and jurisdictional matters, so my interest in this dispute has now been piqued.

The Convention on the Civil Aspects of International Child Abduction , more commonly referred to as the "Hague Convention" is an international treaty meant to secure the "prompt return" of children wrongfully removed to, or retained in, any Contracting State, and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States (Article 1). In other words, it is a treaty that is meant to ensure that abducted children are returned home promptly, so that their home state can make the necessary custody and access (decision-making and parenting time) decisions.

Turner's position is that she and Jonas agreed to make England their "forever home" in December 2022 and relocated there in April 2023. She says that the couple agreed that the girls would stay with Jonas in the U.S. while he was on tour and she was filming, after which she would travel to New York and bring the girls home to England on Sept. 20, 2023, and that he has now refused to return the girls' passports as agreed, so she can travel home with them.

Turner's lawsuit gives a detailed chronology and outlines the steps she says the couple took to make England the girls "habitual residence," and how the girls are both fully integrated and involved in all aspects of life in England, according to her. These details will be extremely important, because in order for Turner to succeed in her Hague Convention application she will have to show that England was the girls' "habitual residence" at the time of the alleged wrongful removal or retention.

There are limited defences that Jonas can raise to resist the children's return to England if the court in the U.S. finds that he has wrongfully removed or retained the children there, which include Turner's consent or acquiescence, or the "grave risk of harm" defence. However, the bars to meet the various defences are set extremely high. They are set high by design because successfully meeting a defence means the children are not returned to their home state, despite a wrongful removal or retention being found. It would dilute the clear and important objectives of the Hague Convention if the defences were "easy" to meet.

One of the most important things to understand about a Hague Convention ruling is that it is not a decision-making and parenting time determination. A court that makes a return order under the Hague Convention is not deciding the merits of any decision-making or parenting time claims. It is an order meant to return the children to the jurisdiction that is the appropriate place for the parenting determinations to be made. That means that even if Turner is unsuccessful in her Hague application and the matter remains in the U.S., she will still be able to ask the court in the U.S. to allow her to relocate to England with the children. The same holds true for Jonas if Turner is successful; he can still ask the court in England to allow him to relocate to the U.S. with the children.

I am going to continue to follow this closely, with the most recent development being the couple apparently consenting to an interim court order that neither of them will remove the children from New York. This type of interim "non-removal" order is very common in Hague cases. It is not an admission that the children are habitually resident in New York, but is rather made to ensure the children are not moved further while the Hague matter is being dealt with, and is without prejudice to the parties' claims.

Hopefully the couple can work this dispute out, for themselves and their girls.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Kristy Maurina is a partner at MacDonald & Partners LLP where she has practiced family law exclusively since 2008. Kristy’s practice includes all areas of family law including negotiation, mediation, arbitration and litigation, with a particular interest in matters involving international child abduction, including Hague Convention and non-Hague Convention and jurisdictional cases.

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Challenging Advocacy

Wed, 20 Sep 2023 20:25:51 GMT

Gary Joseph | Sept 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Recently I argued a difficult long motion wherein the opposite side used three cases in the Court of Appeal against my argument. Interesting, all three involved appeals that I had argued and lost! No busy family lawyer likes to admit to losses in any court, but this was particularly embarrassing as the only three cases he relied upon were my losses. I would like to suggest that those three cases are the only cases I have ever lost in the Court of Appeal, but the truth is there have more (actually four in total ... lol).

After court I had coffee with opposing counsel (I drink tea not coffee consistent with my British background). We had a wide-ranging discussion of our case (very interesting issues) and the law in general. He then paid me a wonderful compliment. With no sarcasm stated or meant he thanked me for bringing forward those issues to the Court of Appeal so that the issues involved could be considered and ruled upon by our appeal justices. He bemoaned the fact that too few counsels today are willing to argue

difficult and challenging legal issues and commented that the entire basis of our common law is at risk by reason of the absence of this type of advocacy, Wow, he pumped up my ego tremendously (something terribly in need of same ... not).

Later in the day I reflected on this discussion with one of my colleagues, and she too agreed that we should, and we must continue to take on difficult and sometimes unpopular cases to advance issues that need to be considered and to challenge decisions that require same. Our courts are often the willing and sometimes unwilling dumpsite (no disrespect meant) for issues our politicians are too fearful to take on. Whether one agrees with an activist court or not (I don't) the reality is as described above, and this necessitates counsel who can and are willing to take on the challenge of these cases from both sides of the argument.

Recent developments on the free speech issue and professional disciplinary proceedings arising from the Jordan Peterson case must not discourage counsel from pleading cases effectively whether from the politically acceptable side or otherwise. Effective advocacy will and must always have a place in our community and counsel should not shy away from the challenges of advocating an unpopular position. The rigours of debate help to shape and define our thinking on important legal and social issues, many of which arise in the family law world. Counsel should view the opportunity to participate in these legal debates as a privilege ... I do.

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When a client lacks the capacity to direct counsel

Wed, 13 Sep 2023 12:30:15 GMT

Gary Joseph | Sept 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Mental health issues are increasingly part of a family lawyer's practice. Inadequate community resources for those suffering from such afflictions exasperate the problem. Often dealing with the emotional impact of a separation and/or divorce can drive an otherwise emotionally healthy client to emotional or mental breakdown. Marital breakdown and mental health issues often cause a family lawyer to question the client's ability and capacity to instruct counsel. I have compiled this summary of issues that arise when counsel is confronted with a client who is not able to instruct for reasons of mental health and/or cognitive impairment.

Client with diminished capacity and professional obligations: Rules of Professional Conduct

I suggest that first and foremost, the lawyer should consider the Rules of Professional Conduct (RPC). The salient points in the PC for lawyers acting for a mentally or cognitively disabled client are:

1. When a client's ability to make decisions is impaired by mental disability, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship as provided for in Rule 3.2-9.

2. If the disability is such that the client no longer has the legal capacity to manage his or her legal affairs, the lawyer may need to take steps to have a lawfully authorized representative appointed to protect the interests of the client.

3. The lawyer has an ethical obligation to ensure that the client's interests are not abandoned.

4. The lawyer must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship unless authorized by the client or required by law to be disclosed.

Appointing the Public Guardian and Trustee

The Family Law Rules authorize the court to appoint legal representation for a person who appears to

be mentally incapable. Rule 2(1) of the Family Law Rules provide as follows:

2(1) 'special party' means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act , 1992, in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection or child support case.

If there is no appropriate person willing to represent a special party, Rule 4(3) provides as follows:

4(3) If there is no appropriate person willing to act as a special party's representative, the court may authorize the Children's Lawyer or the Public Guardian and Trustee to act as representative, but only with that official's consent.

Section 6 of the Substitute Decisions Act, 1992 defines incapacity as follows:

A person is incapable of managing property if the person is not able to understand information

that is relevant to making a decision in the management of his or her property or is not able to

appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In sum, where a litigant lacks mental capacity, the court may designate them a special party and appoint the Public Guardian and Trustee as his or her representative. The cases recognize that the definition of a "special party" under the Family Law Rules is broader than that of a party "under disability" pursuant to Rule 7 of the Rules of Civil Procedure ( Zabawskyj v. Zabawskyj, [2007] 0.J. No. 4643).

The purpose of appointing a litigation guardian

The appointment of a litigation guardian is meant to protect not only the person suffering from a disability, but the integrity of the judicial process for all participants in the litigation, including the court. This was commented on by Justice D.G. Price in Costantino v. Costantino, 2016 ONSC 7279, paras. 36-37:

36 The purpose of appointing a litigation guardian is to protect both the litigant who is

incapable of making the necessary decisions in a proceeding, and the other litigants. Justice

Coo, in Bilek v. Constitution Insurance , in 1990, noted, "One must be very cautious in coming

to a conclusion which would bar the plaintiff from having the final say in how his litigation is to

be conducted or resolved." However, Master Beaudoin, as he then was, in Cameron v. Louden,

in 1998, noted that Rule 7 of the Rules of Civil Procedure , providing for the appointment of a

litigation guardian in a civil action, is designed for the protection of not only the disabled

litigant, but also the other party to the litigation, and the court. He stated:

The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties, and the Court itself. The rule offers protection to the party, ensuring that a competent person with a duty to act for the party's benefit is there to instruct counsel and take steps in the litigation on the party's behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs, and is responsible for seeing that the court's eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed. [Emphasis added]

37 Justice Stinson, in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors , in 2013, adopted master Beaudoin's characterization of the rationale of Rule 7. He stated:

These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also "to protect the integrity of the judicial process for all participants in the litigation, including the Court." (Murphy v. Carmelite Order of Nuns.) As noted by Lofchik J. in Lico v. Griffiths, at para. 24, because the rules protect the person under a disability, they consequently_protect the entire court procedure. [Citations omitted] [Emphasis added]

Proving incapacity

Where incapacity has been raised, it must be proven by the moving party on a balance of probabilities (Costantino v. Costantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309; Torok v. Toronto Transit Commission , [2007] 0.J. No. 1773 (Ont. Master), para. 24; and Cameron v. Louden , [1998] 0.J. No. 2791 (Ont. Master)). The test for incapacity is an objective. Capacity must be determined on the basis of "the evidentiary record, not subjective assessments." (Chai v. Law, 2020 ONSC 6998, paras. 33-38.)

The applicable test

The concept of mental incapacity under the Substitute Decisions Act , 1992, is "quite broad". The question is whether the person is able to understand information that is relevant to making a decision in the management of her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. On the basis of that definition, a "special party" is "a person who is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue." ( Zabawskyj v. Zabawskyj at para. 13; Chai v. Law , supra, paras. 33-38.) In Costantino v. Costantino (supra, para 40), Justice Price noted that "[t]he test for appointment of a litigation guardian is a functional one. It relates to the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation.

The following factors should be considered when determining whether a party is under disability and requires a litigation guardian, see Y.S. v. J.Y., 2021 ONSC 5736, para. 16, and Costantino v Costantino , supra, para. 57:

a. A person's ability to know or understand the minimum choices or decisions required and to

make them;

b. An appreciation of the consequences and effects of his or her choices or decisions;

c. An appreciation of the nature of the proceedings;

d. A person's inability to choose and keep counsel;

e. A person's inability to represent him or herself;

f. A person's inability to distinguish between relevant and irrelevant issues; and,

g. A person's mistaken beliefs regarding the law or court procedures.

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Wasted Court Appearances

Wed, 06 Sep 2023 11:49:11 GMT

Gary Joseph | Aug 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

-- Spoiler Alert: This short piece will not follow my habit of complaining and criticizing. There is more of that to come soon but for now I want to comment on a case that has been around for some time but should be revisited on a regular basis.

In 2020, Justice David Jarvis published comments worthy of repetition in this era of a paucity of court and judicial resources. Before being ordained (sorry, appointed) Justice Jarvis practised extensively in family law with a downtown Toronto firm. He brought his wealth of practical experience to the bench.

In the case of Ni v. Yan, 2020 ONSC 5941 at paragraphs 8 through 10, Justice Jarvis expresses his frustration (my interpretation) with litigants attending a settlement conference not fully prepared to address settlement on a fully informed and motivated basis. To do otherwise Gary Joseph represents non-compliance with the Family Law Rules and constitutes a waste of the court's valuable time and the clients' resources. I love the so accurate comment of Justice Jarvis that "a settlement conference is not a disclosure dartboard."

So, let's drill down on this continuing phenomenon of court appearances with either (or both) unprepared counsel or files that are not ready for the process before the court that day. I know I promised that this piece would not contain my usual complaining but sorry, sometimes I can't help myself. Too often today counsel appear basically seeking help in managing or resolving their file without the necessary homework done. I see this often in mediations and as noted by Justice Jarvis, in settlement conferences. Please do not think I am preaching from the mountain. Of course, there have been many times when my homework falls short of my lofty words but frankly we simply can't afford this any longer. The courts are overwhelmed, understaffed and underfunded. Clients are stressed by rising prices, rising interest rates and falling values for many of their assets (cottages, shares etc).

Wasted court appearances must be a thing of the past. When your opponent raises legitimate concerns relating to the fact that the file is not ready for the planned appearance whether it be a motion or conference, drop the gunslinger response and consider carefully the merits of the concern. If legitimate, consent to an adjournment request. When the matter comes back after the needed adjournment, make sure that all the preparation has been done so that the court gets the respect it deserves (by a properly prepared file) and the client gets value for his/her money!

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Questions regarding imputation of income, new evidence considered in Jasiobedzki v. Jasiobedzka

Fri, 11 Aug 2023 17:26:39 GMT

Michael Stangarone and Aria MacEachern | Aug 2023

In the July 2023 decision Jasiobedzki v. Jasiobedzka, [2023] O.J. No. 3044, the husband sought to appeal two spousal support orders made after a trial to the Ontario Court of Appeal.

The husband raised numerous grounds of appeal. The two grounds that are perhaps the most interesting are: 1) Did the trial judge err by not imputing income to the wife?; and 2) Should the fresh evidence proposed by the husband be received? (para. 5). The Court of Appeal dismissed the husband’s appeal and awarded costs on the appeal to the wife in the amount of $10,000 (para. 23).

It was the husband’s position on appeal that the trial judge erred by failing to impute income to the wife at the trial. The Court of Appeal disagreed with the husband. The Court of Appeal saw no error in the trial judge’s decision in determining that income should not be imputed to the wife, which I would agree with.

When reviewing the trial decision, the husband sought to impute income to the wife in the amount of $9,516 because the wife could have been receiving her Canada Pension Plan and Old Age Security and chose not to (para. 25). At the trial, the wife testified that she was provided evidence from a financial planner that it was financially beneficial to her to delay the receipt of that income to a future date.

It is worth noting that this evidence was not challenged by the husband at the trial. The husband also did not provide or rely on any authority at the trial that the wife was obligated to claim the Canada Pension Plan and Old Age Security now (paras. 42 and 43).

The wife provided evidence as to why she did not wish to claim the Canada Pension Plan and Old Age Security at this stage. The reasons were legitimate, independent and accepted by the trial judge. The wife was not simply declining to claim the Canada Pension Plan and Old Age Security in an attempt to increase the husband’s monthly spousal support payments; her approach was rational and logical in the circumstances.

Secondly, the amount of income that the husband sought to impute to the wife at trial was minimal, and therefore the impact (if imputed to the wife) on the husband’s monthly spousal support payments would have also been minimal. Third, and rightly commented on by the Court of Appeal, the wife choosing to delay receiving the Canada Pension Plan and Old Age Security is advantageous to the husband, as when she does receive the payments, the amount of Canada Pension Plan and Old Age Security that she receives will be elevated because of the delay. That would then decrease the amount of the husband’s monthly spousal support payments at a more rapid rate (para. 13).

While it was acknowledged by the Court of the Appeal that these were judgment calls made by the trial judge, they were the correct judgment calls, and it seems as though the husband failed to se that they were in fact advantageous to him.

At the appeal, the husband sought to introduce fresh evidence. The Court of Appeal examined the proposed fresh evidence and determined that none of the proposed evidence would have affected the decisions arrived at and therefore was inadmissible for failing to meet the requisite legal test (para. 21).

The Court of Appeal’s decision comments on one piece of fresh evidence which the husband sought to introduce; being that the wife paid $5,000 from a joint account towards legal fees during a “grace period” (para. 22). This type of evidence presented by the husband would not have changed the decision of the trial judge and the outcome of the trial. The wife utilizing $5,000 from a joint bank account for the payment of counsel (likely to defend against the husband’s appeal) is not material to the verdict reached at the trial.

Michael Stangarone is a partner and Aria MacEachern is an associate at MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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Just a Lawyer

Thu, 20 Jul 2023 16:45:05 GMT

Gary Joseph | July 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I recently attended a very enjoyable retirement party. Yes, you read it correctly, a very enjoyable retirement party!

The location was great, food was terrific and the crowd was full of interesting lawyers and judges. I was very happy to connect with many old friends to chat with. Interesting people often ask interesting questions. One such question that was posed to me a number of times that evening was "do you do mediation and or arbitration?" To which I repeatedly answered "no, I am just a lawyer," I expanded on this saying my personality does not suit doing mediation (as a mediator) and if I wanted to arbitrate, I would have applied to be a judge. I guess the same can be said of my refusal to do collaborative law. It's just not me.

Most of the interesting people, recipients of my answer as described above, reacted in a similar manner. Either a forced smile or a questioning gaze. But the truth is, I am just a lawyer. I have wanted to be "just a lawyer" all my life and to achieve that goal is self- fulfilling and a privilege.

We, of course, today are flooded with lawyers who want to be or are mediators. In my view there are many mediators but only a few with that special skill to bring conflicting spouses together in resolution. An industry has flourished offering courses in mediation. These courses are also quite useful to lawyers who participate with clients in mediation, but I fear that many lawyers hoping to carve out new careers as mediators will fail. More is demanded of those who wish to arbitrate but again those who make it may find it difficult to build an arbitration practice.

The point of this rather dull piece (my view, I hope not yours) is about professional fulfillment. The law offers a broad array of career sub-choices, but those most be a match for your skills, training, personality and goals. I am very happy being "just a lawyer." Please don't look at me strangely when I say this. May I remind you that many if not most of the legal giants of our past (please don't cancel them) were just lawyers. Don't be something other than "just a lawyer" for all the wrong reasons.

Find your calling within our wonderful (yes, I believe it to be so) profession and reap your fulfillment from finding your place, You need not more.

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Court of Appeal nails it in Ahluwalia v. Ahluwalia

Thu, 13 Jul 2023 13:18:38 GMT

Gary Joseph | July 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

I often tell my colleagues that I have notational bruises all over my body and my ego from my many appearances in the Ontario Court of Appeal (by the way, the Alberta Court of Appeal has also levelled multiple blows to my quite resilient ego). With great respect, I find myself at times totally disagreeing with various appeal decisions; however, when the Appeal Court nails it, I feel compelled to speak up. Nail it they did in the Ahluwalia v. Ahluwalia, 2023 ONCA 476 decision.

A busy week of court ended for me last Friday with the welcome receipt of the decision in the highly contentious appeal of the decision of the Superior Court of Justice in Ahluwalia v. Ahluwalia, 2022 ONSC 1303. The lower court had created the tort of domestic violence. The very well written and practical 50 pages of the Appeal Court decision was a quick and enjoyable read. To my mind the Appeal Court covered all the necessary bases while still recognizing the need to condemn domestic violence and preserve a significant damages award against the offender.

In overturning the part of the lower court decision that created the torts of domestic violence and coercive control, Justice Mary Lou Benotto writing for the unanimous court, found that new torts should not be created where existing torts suffice. She concluded that the lower court had created a new tort which was not required. Further the justice referenced the fairly recent amendments to the Divorce Act (and the Children's Law Reform Act ) that integrated the concerns with domestic violence in the context of parenting determinations but chose (by obvious omission, in my view) not to introduce the concept of a tort to address such abhorrent conduct. This is a recognition that the elected members of Parliament are better left to the creation of new laws. However, Justice Benotto does not reject the idea of courts creating new laws but, in this case, saw no need for same.

The first two paragraphs of the decision make it clear that the court, and society as a whole, should take all steps necessary to ameliorate intimate partner violence but not in circumstances where "numerous and varied remedies already exist." The court concluded that existing torts properly applied were available to address the harm suffered. Those upset with the decision may find some comfort in Justice Benotto's comments commencing her analysis of the issues. I quote: "It is axiomatic that intimate partner violence must be recognized, denounced and deterred."

I am sure that view is shared by the bar and the bench at large. However, no matter how compelling the issue, constraint and respect for existing jurisprudence is recognized and affirmed by the Appeal Court. I take comfort in that fact.

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CRA, ex-wife get paid before man's creditor after matrimonial home is sold

Thu, 13 Jul 2023 13:10:51 GMT

Laurie Pawlitza | July 2023

Many separated couples assume they are equal owners of their home, no matter whether both are on the title, but who actually owns the house matters if there is a separation, especially if one of the spouses has unpaid debt .

Under Canada’s constitution, property and civil rights are under provincial jurisdiction, meaning that joint tenants’ rights differ by province. A recent Ontario Court of Appeal ruling in Senthillmohan vs. Senthillmohan is a good reminder to third-party creditors about how tricky it can be to enforce a judgment against a jointly-held property.

After the Senthillmohans separated, the wife obtained a court order to sell the jointly-owned home. The net proceeds were to remain in trust after its sale. Meanwhile, one of the husband’s creditors, a numbered company, sued the husband over a debt.

The husband did not defend the lawsuit against him, and the company obtained a default judgment in September 2021 and put a lien against the home.

This was not the husband’s only debt. He also owed a large tax bill to the Canada Revenue Agency .

A month after the default judgment was granted, the parties entered into an agreement of purchase and sale for the house. The ex-spouses then consented to a family court order to sever the joint tenancy. A few months later, the wife asked that her one-half share of the net proceeds be...

The complete article is available at financialpost.com or click the link below to read the rest.

Young lawyers, don't ignore your litigation skills

Fri, 23 Jun 2023 15:02:53 GMT

Gary Joseph | June 2023

This article was originally published by Law360 ( www.law360.ca ), part of LexisNexis Canada Inc.

Recently a number of young family lawyers have written and published views relating to the role of the family lawyer in the justice world. These articles suggest that skills relating to negotiation and keeping matters out of court now are more important than advocacy skills and court presence. Wow! What an innovative and forward thinking view. Not!

I write to advise these young lawyers that for decades now even those of us who dare to pride ourselves on our court skills settle the vast majority of files without the need to litigate. However, what these young and largely inexperienced family lawyers neglect is the fact that many of the skills necessary to settle cases without a court appearance were developed in court as family law litigators.

Let me expand upon this view. In order to properly and effectively litigate family law matters one must have an in-depth understanding of the jurisprudence that governs. How can you settle a matter if you are not immediately knowledgeable of the latest Court of Appeal decisions on a particularly important aspect of your case? Let me go further on this subject. Family law litigators must have an intricate knowledge of the law of evidence. Oh, you think that you don't need this to settle cases? Wrong. How can you properly assess and advise a client as to whether, for example, the "evidence" that they have to prove a claim for excluded property on an equalization dispute would be admissible in evidence, if necessary, if you don't understand the rules of evidence? Answer: You cannot.

I already know the push back to all this. You don't need to go to court, you don't need to litigate to have the above-noted knowledge. True enough, but litigating cases, arguing fine points in the Court of Appeal or at trial forces you to have a pinpoint and immediate working knowledge of these matters. OMG, now I am going to use words that perhaps shouldn't be spoken. Being "battle tested" in trial or in the Court of Appeal forces you to read the cases, to understand them, to apply the rules of evidence and know how they apply to your case.

"Battle tested!" Please don't cancel me for using this term.

Can I please be perfectly honest? Most family law cases should settle and do settle. Sorry young family lawyers, I do still settle well over 90 per cent of my cases but those that don't settle, I can and do litigate and/or appeal them. You need these litigation skills. My late and great mentor James C. MacDonald settled almost all his cases without litigation but when he retired he told me with conviction that I never should abandon my trial skills. He simply said that his litigation skills were essential to his success in settling cases. He cautioned that my skills in that realm should not be ignored, nor should I permit the importance of them to be diminished.

I am sorry (again ... OMG, I sound like our Prime Minister apologizing all the time). Perhaps you can tell I have written this article with just a little bit of anger. Correct. Also, perhaps, I have written with a lack of modesty. Please excuse me, I am indeed most of the time a humble person. However, I am tired of those who can't do criticizing those of us who can do. I close with my usual refrain. I am close to leaving the family law stage. I miss many of my colleagues who have already left: Pat Schmidt (the best family law litigator ever in my view), Phil Epstein, Stephen Grant and, of course, Jim MacDonald. Those lawyers settled most of their cases but were skillful litigators and appeal advocates who used those skills to help them settle.

Please, young inexperienced family lawyers, go to court once in a while, learn the rules of evidence and improve your advocacy skills while on your feet. Trust me, it will help you settle cases.

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Parenting Time: Infants and breastfeeding

Sat, 07 Jan 2023 19:17:21 GMT

Gary Joseph | Jan 2023

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

As with most family law disputes, respect is due to the competing views of both parties. No more so than with parenting disputes. For years debate has raged over appropriate parenting time for the non-primary parent of an infant. Within this debate issues arise over breastfeeding, childcare, adequate facilities (for example a crib), availability and overall safety concerns. My own experience in raising four children (with some limited help from my wife ... lol) alerts me to the vulnerability of infants.

One of the most emotionally charged issues in parenting time disputes involving an infant centres on breastfeeding. There is a plethora of medical end social writings on the importance of breastfeeding to the child and the mother. In the family law world, the issue has been thoroughly canvassed in many articles including Fiona Kelly's article published in the Canadian Journal of Family Law, 2009 “Custody and Access Decision Making and the Breastfeeding Child.”

Judges have, of course, wrestled with this issue in innumerable cases. I particularly draw your attention to the very recent decision of Justice Brian Dubé in Pelkey v. Henley, 2022 ONSC 6477. In that case the father sought an expansion of parenting time with respect to a 16-month-old child who was being breastfed by his mother (the responding party on the motion). As noted in the decision, mother was "an impressive mother” who spent a great deal of time researching how to raise a healthy and happy child. Father, who lived in another city, was from a different racial background and was anxious to spend more quality time with the child, introduce him to his paternal cultural background and to his extended family. The mother's proposal to permit the child to visit with his father in the father's city so long as the child was returned every couple of hours was dismissed as impractical even though the residences were only about a 20-minute drive apart.

Regardless of whether I agree with the decision I find Justice Brian Dubé has written a respectful and sensitive analysis of the competing issues, finally determining that while breastfeeding "is very important”, of "even greater importance ... is the development of a deeper, stronger and more comprehensive bond with his father.” The order was made expanding father's time "to foster a loving relationship between the child and the" father.

I would also draw your attention to a Saskatchewan Queen's (King's) Bench case Justice Dubé cites within his decision, Lygouriatis v. Gohm, 2006 SKQB 448, wherein the issue of parenting time for the non-residential parent is considered for a 3-month-old child. This case considers the conventional wisdom of frequent and short visits for an infant. The case points out the importance of evenings and overnights in the bonding process, notwithstanding the usual approach to these cases.

Times are certainly changing in the family law world. The traditional “access” order of every other weekend and one midweek visit for the non-residential parent has basically disappeared. Judges today are increasingly sensitive to societal changes that see parenting responsibilities in quite a different manner than even some 30 to 40 years ago. Family lawyers need to add these considerations to their “best interests” presentations in parenting disputes. Other than in exceptional cases, children benefit from the involvement of both parents. Courts and family lawyers should encourage this wherever possible. Caveat - I certainly recognize that there are some cases where either this is not possible or not in the child's best interests. However, in the majority of cases, I believe that the science supports this view.

My personal opinion is that we are in a far better place on these issues than when I began to practise family law. I am greatly encouraged.

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Ruling 'an important decision' on how foreign divorces recognized under Canadian law: lawyer

Mon, 02 Jan 2023 23:03:19 GMT

Christopher Guly | Jan 2023

Courts recognizing foreign divorces are not uncommon. But motion judges need to “distinguish between the granting and the registering of a divorce,” and to identity a “real and substantial connection” for the parties at the time of a divorce, the Ontario Court of Appeal held in Abraham v. Gallo 2022 ONCA 874, which was released on Dec. 15.

The decision allowed Sharon Fahmy Abraham's appeal of Ontario Superior Court Justice Robert MacLeod's ruling, .Abraham v. Gallo 2022 ONSC 1136. In it, he held that her former husband's unilateral and exclusive right to end their marriage in 2016 under Islamic law through a bare talaq divorce (by which he privately said three times that their marital union was dissolved), was a valid foreign divorce under the federal Divorce Act since he registered it with the Egyptian embassy in Ottawa.

Justice MacLeod's ruled that since Abraham was a former rather than a current spouse, she could no longer claim spousal support from Waleed Rashad Gallo, her ex-husband, and that the court lacked jurisdiction to grant it.

'"In my view, the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce," Court of Appeal Justice Lois Roberts wrote in her reasons agreed to by Justice Peter Lauwers and Gary Trotter.

"In the circumstances of this case, registering the divorce with the Egyptian embassy, [Egypt's] Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent's unilateral pronouncement of a bare talaq."

Justice Roberts said that Justice MacLeod “also erred in law by recognizing the registered bare talaq divorce as a valid divorce."

Neither of the parties had a "real and substantial connection to Egypt at the time of the divorce," the court held in setting aside Justice MacLeod's order and allowing Abraham to proceed with her application for relief, including her claim for spousal support.

Family law lawyer Michael Stangarone , a partner with Toronto-based MacDonald & partners LLP who led the appeal on Abraham’s behalf, said the Court of Appeal released “an important decision” by “making it pretty clear” that the requirement for a foreign divorce to be recognized under Canadian law.

"Registering a divorce is different than granting it," he said.

Justice Roberts said that "bare talaq divorces, without more, have not been recognized as valid in Canada."

"While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight 'to address important public policy issues which can arise out of the domestic recognition of informal or religiously based divorces,'" she wrote, citing such past decisions as one from the Federal Court, Amin v. Canada (Minister of Citizenship and Immigration) 2008 FC 168.

"Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband's third pronouncement of his intent to divorce," Justice Roberts wrote.

"Despite its effect on the wife's status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect."

Stephen Kirby , an associate with MacDonald & Partners who worked with Stangarone on Abraham's appeal, said the appellate court acknowledged that the divorce "was not something that was granted by a formal body, but was something recognized after the fact."

"The court said there is a distinction between a foreign divorce order made by an adjudicative body and a foreign embassy registering a divorce that involved no more than a recitation of words," he said.

"It would have been different had [Gallo] gone to an Egyptian court and obtained an order instead of going to the embassy and saying to officials there that he had sent text messages to [Abraham] saying that he declared three times that [he and Abraham] were divorced, and that they should register it with the Egyptian government to know they're divorced."

Stangarone said that the ruling was also consequential in its finding on the test for a real and substantial connection under common-law principles.

As Justice Roberts stated: "The parties did not have a real and substantial connection to Egypt at the time of the divorce, so the divorce was ineffective for Canadian purposes."

Although they were both born in Egypt, neither Abraham nor Gallo had lived in or visited Egypt in over 20 years and had lived in Ontario since 2002.

Justice Macleod concluded that they had a real and substantial connection since the test to determine it, he ruled, "sets a low bar" and "does not require recency."

He said the parties married in Egypt, where Gallo spent his entire childhood and served in the army.

Abraham also has a bank account there, Justice Macleod noted. (The appellate court noted there "was no evidence" that she held such an account in Egypt.)

"Respectfully, the motion judge's formulation of the test for real and substantial connection at the time of the divorce incorrectly diluted the requirement that '[t]he connection to the foreign jurisdiction must be a substantial one,'" said Justice Roberts, referring to the Supreme Court of Canada's decision in Beals v. Saldanha 2003 sec 72 regarding a cause of action and a foreign court.

"The motion judge put too much weight on the historical connections between the parties and Egypt. While past connections to a jurisdiction may be considered, the focus of the real and substantial connection analysis should be on the parties' real circumstances at the time of the divorce, not on historical or transitory factors," she wrote in her reasons.

"This approach is in keeping with this court's guidance that the location of the parties' 'real home' or 'ordinary residence' is a significant presumptive connecting factor informing the real and substantial connection analysis in the context of family law proceedings and marriage breakdown."

Justice Roberts added that Justice MacLeod's "application of the test for real and substantial connection undermines its policy underpinnings," which she said, "seeks to exclude artificial bases of jurisdiction and prevent forum shopping."

"Here, notwithstanding the parties' residence in Ontario, the respondent engaged the summary registration process of the Egyptian governmental authorities instead of commencing proceedings in Ontario, as the respondent himself had done after the first separation in 2012," she said.

"It was open to the motion judge to find that the respondent's choice of the Egyptian registration process did not give rise to duress as alleged by the appellant," Justice Roberts wrote in her reasons.

"However, because [Justice MacLeod] misapplied the real and substantial connection test, he did not step back and consider, as he should have done, whether the respondent's choice amounted to impermissible forum shopping. In my view, it did.''

Stangarone said that with its ruling, the Appeal Court has provided members of the family law bar with guidance "in terms of how you determine a real and substantial connection."

Kirby said the decision "clarifies both the limits to which somebody can rely on a foreign divorce to try and cut off someone's claim to spousal support, and the law with respect to the jurisdictional test in family law cases."

In its decision, the Court of Appeal said that both parties should return to the Superior Court for a case-management conference "to deal with next steps," including whether Gallo should be granted leave to amend his answer to claim a divorce.

Family law lawyer Rachel Williams, a partner with Morrison Williams Professional Corp. in Oakville,

Ont., who represented Gallo, did not respond to a request for comment on the appellate court ruling.

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What you can and can’t do with a family home after you separate

Tue, 22 Nov 2022 00:09:55 GMT

Michael Stangarone & Juanita Valencia | Nov 2022

Your family home is where you and your family can rest, enjoy each other’s company and create memories. But what happens to this special place when a couple decides to separate and, ultimately, divorce?

How does the law view the family home, and how does its value come into play when determining how a family’s assets are to be divided following separation?

Original article posted by canadianfamilyoffices.com, Press the button below to read the complete article.

LSO’s move to drop certified specialist des ignation politically motivated

Mon, 14 Nov 2022 19:51:55 GMT

Gary Joseph | Nov 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I suspect not many of my colleagues are following the machinations of the Law Society of Ontario (remember it used to be called the Law Society of Upper Canada but changed its name to now sound like a beer store) in its dealings with the designation of “certified specialist” for some of its members (apparently only two percent). Some months ago, a notice was provided to us certified specialists that as of Jan. 1, 2023, we had to drop that designation from all of our letters, cards, e-mails and publications. We could no longer call ourselves specialists.

I will not try to replicate the eloquence and precision of an article on this topic written by immigration law specialists David Garson and Betsy Kane, published Oct. 26, 2022, on the Canadian Immigration Lawyers Association website. Suffice to say that these skilled lawyers take apart the LSO’s position on this topic piece by piece leaving it exposed for it truly is, a politically motivated decision in step with the LSO’s “wokeness.”

A tidal wave of protest from specialists has caused the LSO to back down slightly and defer the decision for further study. I doubt greatly that they will abandon completely this further move to “sameness” among us all. Excellence and accomplishment are discouraged, likely a vestige of their view of unacceptable privilege. Rather than strict focus on its mandate to protect the public, the LSO is now in lock step with other social engineers.

When I started practice, I wanted very badly to be designated a QC. At the time, this represented to me excellence and skill in advocacy. When a woke left leaning government dropped the QC, I sought the specialist designation in family law and was delighted to achieve it. I know many of you will snicker at this and dismiss my goal as self serving … go ahead! To me there is nothing wrong with focus, goals and achievement. We need more of this rather than less and certainly within our profession and more so, within the family law practice.

The public would be better served by a law society focused more on excellence in the profession and less on political correctness. Shaming of excellence in practice by dismissing it as the home of the privileged is a mistake. Dumbing down in our profession is a mistake. In the upcoming bencher elections, take careful note of who you vote for and what they stand for. Perhaps it is not too late to reverse the current trend with the LSO and put it back on its past tradition of excellence.

Final note: This article is a poor attempt to protest this wrongheaded decision of the LSO. Read Garson and Kane’s Article!

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Act quickly to counter parental alienation in Hague Convention cases

Mon, 07 Nov 2022 21:39:08 GMT

Michael Stangarone | Nov 2022

A recent decision shows how swift action can pay off when parental alienation is suspected in wrongful removal or retention cases, says Toronto family lawyer Michael Stangarone.

In M.K. v. F.J. , Ontario Superior Court Justice Michael Doi ordered the return of a 12-year-old boy to his mother in Florida, just weeks after the child began sending her “shocking and “highly derogatory” messages towards the end of a brief stay with the father in Burlington, Ont.

While the father urged the court to honour his son’s desire to stay with him, Justice Doi declined to exercise his discretion to refuse a return order, concluding that the boy’s stated wishes were a result of undue influence by the father.

“When you’re dealing with alienation, act immediately, and a finding of parental alienation could potentially be made on the record on an interim basis,” says Stangarone, a partner with MacDonald & Partners LLP, who acted for the successful mother along with Kristy Maurina . “It was excellent how quickly Ontario acted on this, and returned the child to his habitual residence in Florida, where the court that has jurisdiction can deal with the merits of any dispute.”

According to the ruling, the mother and father divorced in Ontario in 2018, 20 years after their marriage in Iran. The following year, relations were cordial enough for both parents to move with their child to Florida for the mother’s work, where the parties lived separate and apart in the same home.

However, things between them deteriorated in the summer of 2019 during a trip to Iran to formalize their divorce in that country, where the mother ended up launching legal proceedings when they couldn’t agree on the terms of their split.

The decision says the father remained with the child in Iran for several months after the mother had departed, returning the boy to Florida only when she agreed to sign a letter granting him “full custody” of the then-nine-year-old. The episode cost the boy three months of schooling and prompted his enrolment in therapy, while the father returned to Canada.

During the pandemic, the father spent more than two years living in the mother and child’s Florida home, before relocating to Montreal in May 2022. Matters came to a head in July when the father flew to Toronto for a short visit with the son while the mother was in town for work.

The night before the boy was due to be returned to his mother, he used a messaging app to tell that he wasn’t coming back:

“And this isn’t daddy’s decision, this is mine. I want to be in Canada, and you want to be in Florida, so it fits perfectly. And honestly, I think that would be better. You don’t seem to want me around anyways, as your actions have shown. Don’t’ call me. Don’t text me. Nothing. We’re OVER. I’M over with you. And don’t unpack my stuff, I will pick them up later. Remember, this is my decision and my life. Thank you and goodbye,” the message continued.

A series of insulting and profanity-laden messages and phone calls followed from the son to his mother as she attempted to locate the father with help from local police, and arrange for the child’s return to her care.

“Her son was unrecognizable from the child she knew in these venomous, nasty messages,” Maurina says.

At the end of July, the mother had to return to Florida for work, and engaged MacDonald & Partners to begin legal proceedings. Meanwhile, the decision says that the messages continued to flow from son to mother, including questions about other men and the court proceedings themselves that made it clear to the judge that the father had spoken inappropriately to his son about adult issues.

Following a remote hearing by video, Justice Doi concluded that the boy’s habitual residence under the Hague Convention was in Florida, and that the father had wrongfully retained him in Ontario. The “custody letter” previously signed by the mother had not impacted the mother’s exercise of parenting rights, the judge added, discounting the document as an invalid agreement signed by the mother under duress.

Although Article 13 of the Convention provides judges with the authority to refuse to order the return of a child to their state of habitual residence if the child objects and “has attained an age and degree of maturity at which it is appropriate to take account of its views,” Justice Doi concluded that this was not an appropriate case to exercise the discretion.

“I am satisfied that the exceptionally offensive nature and tone of the messages are wholly uncharacteristic of what children of R.J.’s age and maturity would say unless subjected to alienating efforts,” the decision reads. “On balance, I find that R.J. became a victim of parental alienation after the father shared negative and disparaging remarks about the mother with the child. Given this finding, I am satisfied that little weight should be given to R.J.’s expressed wishes as his views were clearly tainted by the father’s efforts to alienate him from the mother.

“In my view, the court should respect the fundamental goal of the Hague Convention of deterring international child abduction by not invoking the objection exception in this case which would improperly reward the father’s retention by allowing him to keep R.J. after alienating the child from the mother and wrongly manipulating their relationship,” Justice Doi added.

Following the Aug. 22 order, the child was ultimately flown back to Florida to be reunited with his mother.

“They are doing well, but are still dealing with the aftermath,” Stangarone says. “He has been subjected to so much that needs to be unravelled, but the work has begun to undo the damage.”

The case for virtual justice in family law

Mon, 07 Nov 2022 13:18:10 GMT

Gary Joseph | Nov 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

Guy Pratte's recent commentary in favour of in-person courtroom attendances continues the debate over this highly contentious issue. When I read his commentary, I was impressed by the quality of his written advocacy in favour of a return to in-person court. My first reaction though was disagreement with his position. However, upon rereading his views, we do agree on some very significant points although I still disagree on others.

I most emphatically agree (end have previously published this view) that the justice system in general and our courts in particular are a pillar of our democratic society that must be preserved, properly funded and respected by all. But I do not agree that to do so requires in-person attendances for what Mr. Pratte describes (but does not fully define) as “significant matters.”

I also agree that trials should be in person. For all the reasons described by Mr. Pratte, there is no substitute for attending in court for this process. Having been counsel on a number of trials virtually during COVID, despite the best efforts of experienced judges and good counsel, much is lost in the trial process when viewed on a screen.

I write only from the perspective of family law counsel and perhaps that is why Mr. Pratte and I disagree on the issue of access to justice and virtual court. While most litigants dislike the litigation process, family law denied bring much more to the table. They are often coping with the emotional distress of a failed relationship. Parenting issues are particularly troubling and of course domestic violence plays an ugly part in many of these disputes. There is also childcare to consider. Asking a single parent to spend a day In court, often waiting to be called, is a terrible inconvenience and an expense that can and should be avoided where possible. Don't forget that upon separation there is very often financial strains that can be worsened by taking a full day off work. I could go on and on but the point I wish to make is that wherever possible, family law matters (other than trials and perhaps long motions and appeals) should be heard virtually.

Let me conclude by repeating myself as I often do (age related probably). I love going to court and I

love the decorum of it. I feel privileged to be part of that system. However, change is necessary and is often a good thing. COVID was and is horrible but it ushered in change that was too long in coming (one example is electronic filing). Technology will only improve and - can address concerns about the availability of it to those less privileged. We must increase access through technology. I do not believe that the quality of justice will necessarily be compromised.

By opening the once closed doors of justice to more of our society we will only increase the knowledge and respect of the general public for a system that is among the best in the world. Rather than reject it as a tool to deal with “significant matters,” we should look for ways to better virtual access and virtual technology.

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The harm done when counsel personalize family law disputes

Mon, 24 Oct 2022 21:53:35 GMT

Gary Joseph | Oct 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

It was late Friday afternoon and rather than feeling excited for the weekend, I was feeling deflated and angry after receiving a nasty letter from opposing counsel on a high conflict parenting file.

Relationships do break up and children are very often caught in the crossfire of allegations and claims both real and false. When I began practice (a long, long time ago, as my partner William Abbot often reminds me), we only had a court process to resolve these matters. Today of course we have broad range of possibilities for resolution without court process. Mediation collaborative law and parenting co-ordination are but a few of the choices designed to assist in avoiding ugly court battles. Nevertheless, many cases resist all efforts to resolve and are left only with litigation as a forum for resolution. Parties lawyer up and if resolution cannot be found within the court process, trials proceed. I am often part of the lawyering-up process and have fought many these battles on behalf of clients.

What then has caused this poor boy (me) to feel deflated and angry? I bemoan the fact that there is still family law counsel who (a) personalize these disputes to the point where I have to remind myself that the layer is not the aggrieved client and (b) insist on every opportunity to demonize the opposite party in long rambling letters deliberately sent on a Friday afternoon to ruin the opposite party’s weekend.

I often wonder whether the lawyer who personalizes the file is really acting out certain rage or emotional discord in his/her life through the breakup of a client’s life. I often wonder whether the extreme animus expressed in such correspondence is the literary venom of the lawyer rather than the client and whether the strategy of late Friday delivery of such is the lawyer’s idea rather than that of the client. In either case, this is not what we family lawyers should be doing nor is it a healthy expression of our professional responsibilities.

I wish I could reproduce this Friday letter received from opposing counsel. I wish I could convince my opposite counsel on this horribly ugly file to rein in the rhetoric and remember that the dispute is that of the clients, not counsel. I wish I could remind my opposite counsel of our responsibility as family lawyers. My late dear mentor, friend and partner James C. Macdonald, would often remind us that we are family lawyers, and we must always be mindful of our impact on the children and on the family as a whole. I wish Jim were here to speak in his soft and convincing manner to my opposite counsel.

Some of you may consider this rather rich coming from someone who has over the years litigated some of the most horrific custody trials. Perhaps there is some validity to your concern for my sincerity in drafting this piece. However, I remind you that most (not all) generals who have seen battle hate war. I have seen matrimonial battles in the extreme and when it involves children, I hate it. I constantly remind myself not to personalize the dispute and try my best to avoid the writing of letters of the kind I speak of above.

If you are not convinced, then I remind you of my previous writings wherein I spoke of my late mother with a cigarette in her mouth admonishing her children to never smoke. None of her four children ever did. Do as I say not as I (might) do. Don’t personalize and don’t drop letter bombs on the opposite side late Friday afternoon designed only to upset and ruin the weekend for the recipient client. We must be better than that.

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Taking another look at interim support in family law

Thu, 22 Sep 2022 23:24:53 GMT

Gary Joseph | Sep 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

It's time to revisit the now ingrained principles applied in determining interim support. They are intended to provide a reasonable and acceptable solution to a difficult problem pending trial. Our courts talk about applying rough justice on such motions. Now let's talk reality.

Our courts are hopelessly overburdened and underfunded. Trial dates in many jurisdictions are years away. Orders made by applying “rough justice” may be harmful to either or both of the parties (and ultimately the justice system). Payor spouses overburdened with support ordered beyond their means fall into default. The application of Rule 1(8) sanctions can be devastating and may lead ultimately to having one's pleadings struck. The result for the recipient spouse can be equally harmful. Rough justice may result in extreme financial hardship to a spouse “underfunded” by a support order that may last to trial. Financial resources may not exist to maintain a spouse and children. This can be especially harsh if a trial is delayed by under-resourced courts.

I need not add to this commentary the great difficulty experienced in trying to vary an interim order. While I can appreciate the need for a very narrow opportunity to vary these orders, it is often difficult to explain to an upset client that such motions are extremely challenging and rarely successful.

Well, what about an appeal? Really?? As you all know, leave to appeal is necessary when seeking to appeal an interim order of the Superior Court of Justice. How many of you, my loyal readers, can Claim success in getting leave to appeal an interim support order? Again, I understand why we cannot have a torrent of appeals flowing from interim orders. However, adequate remedies are simply not presently available for an aggrieved client upset over a rough justice result on an interim support motion. Principles that evolved when reasonable time frames for a getting to trial were available are perhaps outdated as a result of court delays.

We have to find a better way. Many of the principles that have emerged over the years to be applied on interim support motions are again the result of motion judges dealing with too many motions without adequate resources to do the job they are well-trained and positioned to do. I suggest that more time and effort spent crafting interim support orders may indeed relieve some of the impossible burdens on our family courts. Support orders crafted with adequate income information and with adequate time will garner more respect from the involved parties. A foundation will be laid for resolution, there will be less need for Rule 1(8) motions, less default, less default hearings and perhaps even less conflict.

I am by nature fiscally conservative, and I do not believe that throwing money at every problem will fix it but let's face it, justice has been largely at the bottom of the funding barrel for too many years. This must change and we lawyers must be vocal in our efforts to do so. Let's get a unified specialized family court throughout the province with enough judges, law clerks and staff to properly deal with the ever-growing caseload in family law. And please, no disrespect meant, let's forget this concept of rough justice on interim support motions. It's often too rough.

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Applying 'gross-ups' when determining income for support purposes

Thu, 22 Sep 2022 22:47:04 GMT

Gary Joseph | Sep 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

Payor spouses generally expect that their support obligation is determined by the income they declare in their tax return. Most are upset to be told that the tax return is merely the starting point for the income inquiry that will be conducted by our courts. Upset often turns to rage when the payor spouse is further told that not only is the income (for support purposes) not limited to the tax return, but certain portions of his/her income can be subject to a gross-up. What follows is a crash course in when and how gross-ups may be applied in support disputes.

A spouse's annual income, net of adjustments, is the primary measure used by courts when determining both spousal and child support amounts. In the case of child support, a spouse's income is applied to a statutory table formula per the Federal Child Support Guidelines (commonly referred to as the Guidelines). In the case of spousal support (assuming that eligibility for support has been established), a spouse’s disposable income is examined in the context in the range of amounts formula per the (non-binding) Spousal Support Advisory Guidelines (SSAG). In both cases, these guidelines (and formulas) are intended to bring a measure of consistency and predictability to decisions on support amounts, taking account of financial means and needs, as well as the circumstances of parents/spouses, including the existing standard of living. The formulas further account for the tax effects associated with support payments, including the non-taxable income for the recipients and non-deductible for the payors of child support, as well as the implications of tax policy governing inclusions and exclusions for taxes, deductions and credits associated with support.

Although the income tax return is the usual starting point when determining income for support purposes, It Is usually not the end. The income described on tax returns will almost always need to be adjusted to comply with the broader definition of income found in the Guidelines. This article focuses on a category of adjustment known as "gross-ups," with a particular focus on how gross-ups are applied when determining a spouse's income for support purposes.

The Guidelines employ a comprehensive concept of gross (or pre-tax) income that allows for comparisons between spouses. They accomplish this through a combination of imputing income to account for those types of income that are otherwise omitted from tax returns or taxed advantageously compared to employment earnings, and then applying gross-ups (to reflect imputed income or other income adjustments to the equivalent gross or pre-tax income).

The equation for a gross-up adjustment that adjusts net income (including imputed or net income) to a gross or pre-tax amount to determine support can be expressed in either of two ways.

There are various circumstances in which gross-up adjustments may be applied when determining income for support. The list below focuses on gross-up adjustments associated with tax effects when imputing (or attributing) income to a spouse- per s. 19 of the Guidelines.

• Where a spouse is intentionally unemployed or underemployed (or else not exerting reasonable efforts to be self-sufficient), an income may be attributed that is consistent with the spouse's education, training and experience, or living expenses (based on previous after-tax earnings).

The gross-up adjustment in this scenario entails adding the related income tax to adjust the imputed net income to the equivalent gross or pre-tax level using the spouse's applicable marginal tax rate.

• Where a spouse is statutorily exempt from paying federal or provincial income tax under s. 81(1) of the Income Tax Act, all tax-free earnings are recognized as net income and are then grossed up to the pre-tax amount to account for the tax savings. Other legitimate non-taxable income sources include disability benefits, workers' compensation, strike payments from unions, lottery winnings, capital dividends, social assistance, net federal supplements and certain foreign income. Where it can be identified, illegitimate under-reported or underdeclared income is also recognized and grossed up at the applicable marginal tax rate.

• Where a spouse works or resides in a foreign country with lower tax rates, the spouse's income is augmented to offset the tax differential, and this increase is attributed to income and is then subject to a gross-up adjustment. The gross-up reflects the pre-tax level on the net difference in taxes, deductions and credits under foreign tax laws compared to how these are treated under Canadian tax laws after being translated into Canadian dollars using the applicable average or effective foreign exchange rates. Other factors, such as differences in public services or benefits paid for by each government, may need to be considered when comparing these two outcomes.

• Where a spouse has diverted income or benefits to a third party for purposes of income tax planning, any diverted income is attributed back, and a gross-up adjustment will usually be applied to compensate for any gross tax savings linked to tax bracket effects. This provides for fairness between spouses who hold direct or indirect interests in businesses or other entities - which allows them to realize a range of personal tax benefits through deferrals or intertransfers - and those spouses who do not. The same corrective action may be applied where a spouse falling into a high tax bracket transfers/splits non-economic or discretionary income/benefits to/with a spouse, child(ren) or other related parties in lower tax brackets.

• Where a spouse is determined to have unreported cash sales or earnings, these will be recognized as income for support purposes, and a gross-up adjustment will be applied to adjust such imputed income equivalent to a gross or pre-tax amount. This may be considered even where there is limited evidence to support the allegation should the implicated spouse fail to supply the financial information or other evidence required to disprove the allegation.

• Where a spouse has lowered their tax burden through excessive or inappropriate tax deductions, some or all of their claimed deductions plus the taxes saved may be imputed as income, with a gross-up then applied. Per s. 19 (2) of the Guidelines, the "reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act." In other words, even if appropriate for tax purposes, claimed deductible expenses may nevertheless be considered excessive/unjustified in the context of support determination. Further details on eligible employment expenses can be found in s. 1 of Schedule III of the Guidelines and s. 8 of the Income Tax Act

The courts retain discretion in the application of these gross-up adjustments (and imputing income), consistent with the objective of applying the law fairly and reasonably across many unique family circumstances.

Here is an example, based on a hypothetical 40 per cent flat tax rate on all income:

The four spouses, shown in this table, all received $100,000 annual income/benefits, each from a different source. The differences in reported income seen in Column A thus reflect the differential tax treatment received by their different income sources. As shown, Spouse 1’s employment income is reported in full, Spouse 2’s capital gains are reported at 50 percent , and the incomes of Spouses 3 and 4 are not reported at all as a result of income tax exemption and income tax evasion, respectively.

As stipulated by the Guidelines and SSAG, Column B shows the income imputed to each spouse, equaling the amount of income either legitimately or illegitimately unreported to the tax authorities. Column D shows the actual after-tax disposable income for each spouse, and is calculated by deducting the taxes paid (Column C) from the actual gross income received (in all cases, $100,000). Column F shows the gross-up representing the additional amount that each spouse would have had to earn in gross income to realize the imputed unreported (tax-free) income. In other words, the gross-up adjustment is the amount of taxes the spouse would have paid to receive the imputed income, net of taxes.

Following income imputation and gross-ups the adjusted income of Spouses 2, 3 and 4 (Column G) have all increased. And, the ratio of disposable income available for support purposes to adjusted gross income (that is, the income figure used in calculating support amounts) is equal for all spouses (Column H).

In summary, the imputation of income and the application of gross-ups provide a fairer basis for comparing spousal income and, thus, more equitable outcomes when determining amounts of support.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP . A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law. Jen Capuno specializes in asset and business valuations, litigation support and forensic accounting. She practises at VFDR Inc., focusing on matrimonial disputes and damage quantification. len is accredited as a chartered professional accountant, chartered financial analyst, chartered business valuator, chartered investment manager, certified fraud examiner and certified in financial forensics.

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Wu v. Yu: Relocating in accordance with amended Divorce Act legislation

Wed, 21 Sep 2022 16:50:49 GMT

Michael Stangarone & Kira Beck | Sep 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

Wu v. Yu 2022 ONSC 3661 is a recent case from the Superior Court of Justice involving an interim relocation of over 4,000 kilometers, from London, Ont., to Burnaby, B.C. In the decision, Justice Timothy Price provides an in-depth analysis of the new amendments to the Divorce Act regarding interim relocations and the shifting evidentiary burden of proof in these cases.

It remains to be seen how these new Divorce Act provisions will be interpreted as more relocation cases are adjudicated by the courts; however, Justice Price’s analysis provides an extensive introduction to the amendments and their impact on interim relocation decisions in particular.

In Wu v. Yu , the mother brought a motion requesting an order that she have primary care of the parties’ 4-year-old child and an order permitting her to move to Burnaby with the child as of July 1, 2022. The father asked that the motion be dismissed and took the position that the child should be in the equal care of each of the parties on a 50/50 basis.

Justice Price granted the mother’s request to relocate with the child to Burnaby and in doing so, considered the factors under the amended Divorce Act , specifically, the provisions related to notice under s. 16.9(1), the best interests of the child under s. 16.92 and 16(1)-(6) and the burden of proof under s. 16.93.

The court first considered the decision of Barendregt v. Grebliunas 2022 SCC 22, a recent decision by the Supreme Court of Canada. In Barendregt , the court wrote that the Supreme Court of Canada decision of Gordon v. Goertz , [1996] 2 S.C.R. 27, which has been governing authority for mobility applications for more than 25 years, sets out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with a child: 1) the party seeking a variation must show a material change in the child’s circumstances and 2) the judge must determine what order reflects the child’s best interests in the new circumstances. The Supreme Court in Barendregt made clear that the new statutory regime in both the Divorce Act and provincial legislations largely codified the court’s framework in Gordon .

In Barendregt , like in Wu v. Yu , the court was addressing a mobility issue raised at first instance where there was no existing order under the Divorce Act. The court clarified how these cases should be determined and stated, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.” The court further explained that the first stage of Gordon, which sets out the usual requirement for a variation order, has no application in cases where a mobility issue is raised at first instance.

After referencing Barendregt and the new statutory provisions, Justice Price considered the issue of onus. Onus, or burden of proof, is found at s. 16.93(1) of the Divorce Act and states that if the parties to the proceeding are substantially complying with an order, arbitral award, or agreement that provides that a child of the marriage spends substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Section 16.93(2) states that if the parties are complying with an order, arbitral award or agreement that provides the child spends the vast majority of their time in the care of the party who intends to relocate with the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Under 16.93(3), in any other case, the parties have the burden of proving whether relocation is in the best interests of the child.

The parties disagreed regarding whether there was an “agreement” which provided that the child spent the vast majority of her time in the mother’s care. The mother argued that there was an agreement of this nature, as the parties had incrementally increased the father’s time with the child since the separation, which left the child primarily in the mother’s care.

The father argued that he had been trying to secure a 50/50 parenting agreement since the moment the parties separated but was compelled to accept the incremental increases in parenting time due to the mother’s resistance to his proposals. The father argued that s. 16.93(1) applied, as the agreement to be relied upon was that which underlay the status quo which existed before the parties separated.

Justice Price took note of the fact that on the date of separation, the father was arrested by the police and was prevented from returning to the home where the child was residing with the mother. He therefore found that there was no freely negotiated agreement between the parties and the situation with the child residing primarily with the mother was imposed on the father by the criminal justice system. The trial had not yet been heard, therefore the father was presumed innocent. Justice Price therefore stated that was no order, arbitral award or agreement between the parties and therefore, each party bore the onus of establishing their position on a balance of probabilities.

Justice Price went on to consider each of the best interests factors under s. 16(1)-(6) and the additional factors under s. 16.93 of the Divorce Act. Justice Price found that although the father was willing to care for and meet the child’s needs, prior to and since separation, more of the parenting tasks fell to the mother, and she took on the primary parenting responsibilities.

Of note, in considering the reasons for the relocation, the court considered cases where employment was the driving force in the proposed relocation. In this case, the mother, a doctor, had a job offer for a full-time position in obstetrics and gynecology at Burnaby Hospital. Justice Price concluded that the atmosphere to which the child would be exposed with her mother in Burnaby, where her mother would be challenged professionally and happy in her environment, was bound to be better than the atmosphere to which the child would be exposed with her mother working in London in a position that did not provide her with the opportunity to develop her professional skills, distant from her mother and other supports.

There were accordingly compelling circumstances which must exist for an interim relocation to be approved by the court.

The court held that based on the evidence in relation to the statutory factors, it was in the child’s best interests to be placed in the mother’s primary care on an interim basis and to be permitted to relocate on an interim basis to Burnaby with the mother.

Michael Stangarone is a partner and Kira Beck is an associate with MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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The valuation of employee stock options, part one

Fri, 19 Aug 2022 11:43:42 GMT

Gary Joseph | August 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

The valuation of employee stock options (ESOs) is not restricted to "high net worth" cases. Stock options are frequently granted as a tool for retention of valued employees or to reward employees for work and contribution to the bottom line of a corporation. When they form part of the asset pool of a separated spouse, counsel must be familiar with the treatment of and and valuation of this unique asset. A rather straightforward summary of the components of an employee stock option can be found in the Court of Appeal decision in Marinangeli v. Marinangeli , 2003 O.J. No. 2819. The court commented as follows:

[33] Options are comprised of two components, a cash component and time component. If the price at which the option can be exercised is less than the price of the underlying stock, the option has a cash value. For example, if the option gives the holder the right to purchase stock at $25 and the stock is priced at $35, the option has a cash value of $10. That is the cash component of the option. The fact that the option can be exercised to purchase stock for a particular time period at a set price, in some cases many years, also has value. That is the time component of the option and it decreases as the time for exercising the option goes by. There is an interrelationship between the two components.

This article focuses on the valuation of employee stock options and considers some of the challenges of adopting options valuations models to the unique characteristics of ESOs. We further consider some of the factors that must be assessed where the purpose of the valuation relates to estimating net family property for equalization purposes. All else being equal, the market value of ESOs (less any market value of ESOs held at the marriage date or considered excluded property) is factored into the calculating the net family property as of the separation date.

Options can be grouped into two main types: "call" and "put" options. Options confer upon the bearer a right but not an obligation to call (buy) or put (sell) an underlying asset or stock at a predetermined fixed price - known as a strike price - for a finite period of time. Call options are exercised when the underlying asset price exceeds the strike price, and vice versa in the case of put options. since options confer a right but not an obligation to purchase or sell the underlying asset, an option's value can never be less than zero.

ESOs are essentially call options, created by employers, that function as employee compensation - constituting, as they do, a contingent claim on the employer's underlying company stock. From the employer's standpoint, the growth in popularity of ESOs can be explained by the idea that ESOs can serve to align an employee's interests with those of the shareholders. By giving an employee a stake in their company's future financial success. ESOs can incentivize behaviour that will contribute to profitability - or put otherwise, to a higher company stock price. Today, among business executives and upper management, ESOs will frequently represent a major component of total employee compensation.

In order to ensure that the employee does indeed first contribute to company profitability before benefiting, ESOs generally include vesting conditions - for example, a requirement that an employee remains with the company for a specified minimum time period, or a requirement that a certain performance threshold for the stock be achieved. Once these option conditions are satisfied, an ESO is said to be "vested" and "exercisable." Once vested, employee stock option rights can be exercised to purchase the company stock at the discounted price stipulated within the ESO contract.

To estimate the price of an option (or ESO) requires the use of an option valuation model, of which there are many. In the case of ESOs, two of the most commonly used are the "binomial model" and the "Black-Scholes-Merton (BSM) model." The latter model takes its name from the economists who first published the model in 1973- namely, Fischer Black, Myron Scholes and Robert Merton. The assumed principle on which these, and most other options models, are built is the idea of a perfect market without arbitrage opportunities. Arbitrage opportunities exist where a profit can be made without assuming any risk or incurring any cost. For example, an arbitrage opportunity exists when two identical assets are selling at different prices in different markets. An arbitrage profit can be made based on the difference between selling at a high price and buying at a low price.
Essentially, to eliminate this arbitrage opportunity is to factor in the cost of an option, an amount equivalent to replicating a portfolio that hedges the risk of possible arbitrage opportunities. In effect, if an asset is trading at a higher or lower price, an option confers the right to buy at a lower price or sell at a higher price. In effect, riskless and costless arbitrage profit is eliminated, equivalent to paying for the price of an option. The main difference between the binomial and the BSM models is that the first posits a finite or countable number in the underlying asset's possible future price movements, and the second posits a constant and continuous statistical infinite distribution of future price movements in the underlying asset.

This is the first in a two-part series. Part two will delve further into these valuation models.

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The valuation of employee stock options, part two

Fri, 19 Aug 2022 11:43:38 GMT

Gary Joseph | August 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

As we discussed in the first of this two-part series, when employee stock options (ESOs) form part of the asset pool of a separated spouse, counsel must be familiar with the treatment of and valuation of this unique asset. In this article, we delve deeper into the two most commonly used option valuation models for ESOs: the "binomial model" and the "Black-Scholes-Merton (BSM) model." The latter model takes its name from the conomists who first published the model in 1973 - namely, Fischer Black, Myron Scholes and Robert Merton.

Beyond relying on the assumption of zero-arbitrage opportunity, the price of an option arrived at using the BSM model relies on several further assumptions. Amongst these are assumptions that there are no transaction costs or regulatory constraints; that traders can borrow and lend without any premium linked to risk; that early exercising is not allowed; and that both the return and volatility of the return on the underlying are constant.

The BSM model remains widely used despite its high level of abstraction and, at times, implausible and impractical assumptions. For example, constant hedging can be costly, and the volatility of movements in the prices of underlying assets are not generally constant over time. That said, in the years since the BSM model was first published, numerous variants have emerged that allow for a wider range of real-world applications. For the exact formula underlying the BSM model, see Note 1 below.

The valuation models discussed here recognize two sources of value within options: "intrinsic value" and "time value." The intrinsic value of an option or ESO amounts to the difference between the underlying stock price and
"strike price." Where the underlying stock price is equal to or below the strike price, the option's intrinsic value is nil, and the entire price of the option is linked to time value. An option's time value amounts to the premium for the possibility of generating higher returns in the future through the choice of exercising the ESO In-the-money (or above the Intrinsic value).

To illustrate, suppose that an employee Is granted ESOs as part of a compensation package on July 1, 2022, (grant date) with a strike price of $10. Further, suppose that, per the vesting requirements, these ESOs can be exercised only after a minimum of two years from the grant date (the vesting period), and must be exercised no later than five years from the grant date (expiry date). Finally, suppose that, on the same date that these ESOs are granted, the company stock Is trading at $15, and that a publicly traded call option Identical to the ESO in question is trading for $8. Based on the above, a valuator would determine the ESO's value as follows: the intrinsic value on July 1, 2022, is $5 - that is, the $15 stock price less the $10 strike price offered by the option. And the ESO's time
value on July 1, 2022, Is $3 - that is, the $8 price at which an identical call option Is trading on the open market less the $5 intrinsic value.

AI discussed, real-world applications of the BSM model often require modifications to the original framework. As relates to the valuation of ESOs, adjustments will generally be needed to factor in risks that would preclude future vesting (e.g., possible termination of employment, possible disability, possible death, or possible early exercise of the option rights). Other adjustments will generally be needed to factor in unique risks and contingencies associated with the ESOs relative to the more theoretical option entertained in the BSM model. Amongst these are a lack of marketability linked to restrictions on the selling or transferring ESOs, low trading volume where selling or transferring is permitted, restrictions on hedging imposed on holders of ESOs, and company-specific weakening and downturn into the future as assessed as of the separation date.

Lastly, the net fair market value of ESOs as of the separation date may require a downward adjustment to account for the present value of notional disposition costs likely to be incurred, including ESO acquisition costs and income taxes.

Note 1

The theoretical value of a call option for a dividend-paying stock under the BSM model is expressed as follows:

c = e-δTSN(d1) - e-rTXN(d2)

Where:

S = spot (or market) price of the underlying asset
X = strike price of the option
T = time to maturity (or expiration) on the option
σ = volatility during the term
δ = dividend yield during the term
r = risk-free interest rate during the term
d1 = ln(S/X) + (r +σ2/2)T
σ
d2 = d1 - σ
N(d) = cumulative standard normal density function (that is, the probability of obtaining a value less than d based on a random sample of observations taken from the normal distribution)

A Nobel Prize in economics in 1997 was awarded based in part on the work on the BSM model. Source: Chartered Financial Analyst {CFA): Fixed Income and Derivatives by CFA Institute.

This is the second of a two-part series. Read the first article: The valuation of employee stock options, part one.

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Treatment of capital gains, losses in income determination

Sat, 16 Jul 2022 12:37:49 GMT

Gary Joseph & Jen Capuno July | 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

Despite the fact that the Child Support Guidelines have been with us tor approximately 25 years, certain issues continue to bedevil counsel and clients. In this article we remind readers that the Guidelines treat capital gains and losses in a manner different from that of the Income Tax Act . This fact and others relating to treatment under the Guidelines often come as a surprise to clients. We provide details below to assist counsel in advising clients.

Under the Guidelines, the income that a spouse reports for support purposes must include all sources of income received, before taxes and deductions. This article focuses on capital gains and losses, and how these are treated under the Guidelines. Capital gains are realizable where net proceeds from the disposition of capital property are greater than the adjusted cost base upon disposition. Conversely, capital losses are realizable where net proceeds are less than the adjusted cost base upon disposition. Capital property Includes marketable securities, business interests, personal use property, rental property, depreciable property other properties used for Investment and to generate income.

Under Canadian tax law, the taxable portion of capital gains (less any capital losses) Is based on the prescribed inclusion rate, which currently stands at 50 per cent. To illustrate, where a taxpayer realizes $1,000 in capital gains (net of capital losses) on capital property disposed of during a tax year, the income reported for tax purposes would be $500 (that is, the "taxable" or "net capital gains"). While capital loses can only be deducted from income originating In capital gains, unused capital losses in a given tax year can be carried forward indefinitely to offset capital gains in future tax years, or can be applied retroactively against capital gains realized in the three most recent tax years.

The Treatment of capital gains under the Guidelines differs from the their treatment under the Income Tax Act . Per s. 6 of Schedule III of the Guidelines, when calculating gross income for support purposes, capital gains must be reported in full, without any inclusion rate deduction as allowed form when filing taxes. The Guidelines are concerned with total income and, thus, when looking at capital gains (net of capital losses) they require that the 50 percent portion of capital gains income that is omitted from reported income in the tax filings be added back. In short, the Guidelines lead us to a more comprehensive picture of income linked to capital gains and, by extension, a more complete picture of each spouse's means and ability to provide support.

Beyond requiring a full reporting of capital gains, the Guidelines also empower the courts to factor in the tax savings a spouse enjoys as a result of the 50 per cent inclusion rate (which leaves 50 percent of capital gains income untaxed). This imputation of income Is often applied where one spouse derives a significantly higher proportion of their income through capital gains per s. 19 (1) (h) of the Guidelines. Such adjustments are referred to as "gross-ups" and, in the case of capital gains, gross-ups are meant to factor in the tax savings on the non-taxable portion of capital gains equivalent to the gross pre-tax level.

The effect of these income inclusions, along with income tax gross-ups, can be quite significant (and contentious), especially for spouses receiving a substantial portion of income sourced as capital gains or dividends (in lieu of salary) from their direct or indirect interests in corporate holdings. The courts retain considerable discretion in the application of these adjustments based on principles of fairness and reasonableness.

For instance, where a spouse receives tax-exempt capital dividends (that is, income related to the tax-free portion of a capital gain following disposition of capital property through a corporation), the entire amount of those tax-exempt capital dividends is added to income for support. In addition, the courts may consider the appropriateness of applying an income tax gross-up to account for the tax savings on the entire capital dividends received tax-free. Further income inclusions and tax gross-ups might also be applied where a spouse is able to convert taxable dividends into a lower-taxed capital gains, or else to benefit from tax-free status under the lifetime capital gains exemptions ("surplus stripping").

For tax purposes, a special category of capital losses is realizable upon disposing of shares of, as well as losses resulting from non-recoverable debts from, small business corporations. The Act allows a taxpayer to claim 50 per cent of these losses as allowable business investment losses (ABIL) that is deductible from any source of income, which can be carried back three years and forward 10 years or becomes deductible from taxable capital gains thereafter. Per s. 7 of Schedule III of the Guidelines, the total business investment losses incurred by a spouse during a given year are deductible from the calculated income for support purposes. Any losses in the form of ABIL that are reported for tax purposes are therefore doubled (that is to say, to reflect the full amount of the loss, rather than simply deducting the 50 per cent that is reported as ABIL within a tax filing). And, since ABIL only represents 50 per cent of business investment losses, the other 50 per cent of investment losses not deducted for tax purposes may then be subject to a tax adjustment to account for that portion of losses not originally deducted due to the tax rules.

The Guidelines afford the court discretion in a number of other matters relating to income determination for support purposes. The Guidelines acknowledge the need for exceptions to hard and fast rules and set out circumstances wherein the initial income figure arrived at may not be a reliable measure of financial means to provide support.

Under s. 17 (1) and (2) of the Guidelines, the determination of annual income as set out under s. 16 may not always offer a fair or else reasonable representation of income for support. Accordingly, the Guidelines empower the courts to consider a pattern of income, including fluctuations or nonrecurring income events. The court may further choose not to factor in adjustments per s. 6 and 7 of Schedule III and adjust the amounts of capital losses and business investment losses to arrive at a figure that seems fair and reasonable for support purposes.

There are a variety of situations under which a capital gain or loss might be deemed as fluctuating or non-recurring and thus might be revisited to fairly reflect income for support purposes. Among those capital gains and losses likely to be subject to such considerations include:

One-time capital gains (or losses) generated from the sale of a business share interest or rental property, which produces a one-time material increase (decrease) in personal income.
Capital gains reductions upon notional or actual dispositions of small business corporation shares or specific investments or properties, resulting in a lowering of capital gains reported under personal tax filings in a given year.
Capital losses (including ABIL) that are carried forward from prior years to reduce capital gains (income) in those years.
Capital gains deferral upon claiming a reserve, allowing for tax recognition for a portion of capital gains upon receipt of payments or up to a maximum period for tax purposes.
Capital gains resulting from the disposition of an investment property where the capital gain income year (or years) follows numerous prior years of investments into the property.
Capital gains upon a deemed disposition linked to a change in the use of a rental property to a principal residence, where the disclosure is not required until the actual sale of the property as elected for tax reporting.
Capital gains exclusion upon gifting capital property to a registered charity or qualified donee (inclusion rate of 0 per cent), resulting in lower income while generating non-refundable tax credits and limiting income-generating capital base upon gifting.

The courts retain further discretion in how to treat capital gains generated through a disposition of capital property that has been deemed excluded, or else has fallen under a prior equalization settlement. In these cases, courts may see tit to include or exclude the related income upon its disposition, based on the means and needs of the parties.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP . A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law. Jen Capuno specializes in asset and business valuations, litigation support and forensic accounting. She practises at VFDR Inc., focusing on matrimonial disputes and damage quantification. Jen is accredited as a chartered professional accountant, chartered financial analyst, chartered business valuator, chartered investment manager, certified fraud examiner and certified in financial forensics.

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The parental alienation dilemma

Thu, 16 Jun 2022 10:56:27 GMT

Gary Joseph | June 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

The Superior Court decision in Ahluwalia v. Ahluwalia , 2022 ONSC 1303, has expanded the use of tort law in family law proceedings. I expect this ruling (presently under appeal), if left intact after appeal, will see an increase in the claims for damages in family law disputes.

I have no comment on the appropriateness of this award in this particular case but the decision (in addition to the Court of Appeal decision in the now well-known case of Leitch v. Novac , 2020 ONCA 257) caused me to once again consider the landmark decision of the Supreme Court of Canada in Frame v. Smith [1987] 2 S.C.R. 99 and its place in family law matters.

As noted in paragraph 1 of the decision in Frame v. Smith , “the issue in this case is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.”

Justice Gérard Vincent La Forest, for the majority, held that there was no “possible basis for a cause of action.” The court noted that certain actions existing in the past had been abolished by the Family Law Reform Act, and also rejected that the tort of conspiracy, or an action for breach of a fiduciary obligation, should be applied to these circumstances (paras. 6, 8, 17). Ultimately, the majority found that the presence of legislation relating to custody and access, and remedies therein, were a “comprehensive scheme,” making civil action inappropriate (paras. 11-12, 14).

The facts of the case are quite well known. After the parties separated, a Manitoba court granted the wife custody of the children, with visitation for the husband. Subsequently, there were also orders from Ontario for the husband to have access to the children. The husband alleged that the wife frustrated his access to the children, including by moving them to different cities, changing their last names, and preventing them from communicating with the husband, among other steps. The husband further alleged that because of the wife’s actions, he faced financial expense and suffered “severe emotional and psychic distress.” He claimed damages from the wife and her new husband for “wrongful interference with the legal relationship he had with his children.”

Important quotes from the majority

The following quotes from the majority in Frame v. Smith make it quite clear that our highest court had no appetite for expanding the remedies available in high conflict parenting disputes:

"But what really determines the matter, in my view, is that any possible judicial initiative has been overtaken by legislative action. In all the provinces (and at the federal level for that matter), legislation has been enacted to deal with the modern phenomenon of frequent family breakdowns …"

"It seems obvious to me that the Legislature intended to devise a comprehensive scheme for dealing with these issues. If it had contemplated additional support by civil action, it would have made provision for this …"

The dissent

The dissent had a different view. The dissent held that a “cause of action for breach of fiduciary duty should be extended to this narrow but extremely important area of family law where the non‑custodial parent is completely at the mercy of the custodial parent by virtue of that parent’s position of power and authority over the children.”

The decision in Ahluwalia v. Ahluwalia

In this trial matter, the court considered several issues, including whether the father was “liable in damages for family violence?” Within that issue, the court addressed whether the mother’s tort claim could be “properly considered as part of the family law proceedings,” and whether there is a tort for family violence.

The holding

Justice Renu Mandhane recognized a “common law tort of family violence,” and found that the tort could be brought in a family law claim. Consistent with Frame v. Smith , she found that typically, “the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation.” In this case, however, the court recognized that the marriage was not typical, as the mother endured family violence from the father, and was subject to a pattern of coercion and control, circumstances that would not otherwise be compensated for through spousal support under the Divorce Act. Justice Mandhane therefore awarded the mother a total of $150,000 in damages for the tort of family violence. The court established stringent requirements for the establishment of entitlement and for damages for the newly found tort but nevertheless expanded the remedies available in circumstances involving family violence.

Justice Mandhane discussed Frame v. Smith in the context of the father’s arguments. The father had argued that the tort claim should not be considered as part of a family law claim, as it could “derail the trial process and make it more difficult for parties to co-parent into the future.” Justice Mandhane stated that this argument was “speculative on the facts before me,” given the father’s estrangement from the children.

The court did agree with the father, that generally the Divorce Act “creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.” However, Justice Mandhane also stated that because the Divorce Act had been amended to include the relevance of family violence to parenting issues, the father’s concerns were less persuasive. Justice Mandhane went on to explain that the Act did not “create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence,” and that in unusual cases like this one, “only an award in tort can properly compensate” for the harms of family violence.

Leitch v. Novac

The Court of Appeal in Leitch v. Novac dealt with several issues on appeal from the decision of the motions judge (Superior Court of Justice), including whether the motions judge erred by granting partial summary judgment, and whether she erred in her analysis of the tort of conspiracy.

The Court of Appeal allowed the appeal, noting summary judgment was inappropriate, and that the motions judge had erred in law by allowing the bifurcation of proceedings, without considering the risk of inconsistent results. The motions judge, “motivated by the view that the family law statutory scheme creates a complete code,” also erred by finding that the tort of conspiracy was not available in the family law context. Instead, Justice William Hourigan, writing for the Appeal Court, held that the tort of conspiracy could be applied in family law claims, noting that it is a “valuable tool in the judicial toolbox to ensure fairness in the process and achieve justice,” including as a consequence for co-conspirators who might try to facilitate nondisclosure.

Parental alienation

Parental alienation was originally defined by the psychologist Richard Warshak in a paper published in the Family Law Quarterly , a s “a disturbance in which children usually in the context of sharing a parent’s negative attitudes, suffer an unreasonable aversion to a person, or persons, with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations .” (Emphasis added.) An “alienated child” is said to be one “who freely and persistently expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) towards a parent that are disproportionate to their actual experience of that parent.”

While early cases and many writers in the field dismissed the concept of parental alienation, Justice Douglas Gray in Hazelton v. Forchuk , 2017 ONSC 2282 had the following comments: “[t]here is now a considerable body of caselaw that discusses the issue of parental alienation. It is unnecessary to discuss any of the jurisprudence, because it is now well understood that parental alienation is a real phenomenon, and the courts must take decisive action where it found to exist.”

Concluding comments

Recently, we have seen tort claims resurface in family law proceedings. While lower courts continue to be respectful of the Supreme Court’s views in Frame v. Smith , there may be an increasing willingness to address conduct issues in family law by way of tort law. Perhaps it is time to reconsider whether a damages claim should exist for wilful and persistent interference with parenting time (formerly called access). If parental alienation is indeed recognized as a “real phenomenon,” perhaps it is time to consider a tort to deal with same. While many would argue that remedies already exist, many a “rejected” parent would beg to differ.

Rule 1(8) of the Family Law Rules creates serious sanctions for breach of court orders. “Custodial reversal,” the formerly recognized “atomic bomb” of parenting disputes and reintegration therapy are all available “tools in the toolbox” of family law judges. However, there are indeed cases where these remedies do not reverse the damage done by alienation. The long-term negative impact of severe alienation does not appear to have been directly addressed by statute, regulation or common law.

Perhaps it’s time to consider a tort remedy for severe cases of parental alienation.

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Ahmadi v. Aazadah Reasons of Costs Decision

Mon, 13 Jun 2022 11:42:21 GMT

Michael Stangarone | Jun 2022

Justice Horkin's decision in the recent case Ahmadi v Aaazadah FS-21-00026675 has been made available for download.

Click the link below to read the PDF of the decision.

Yes, advocacy and mediation can exist together

Fri, 10 Jun 2022 11:26:45 GMT

Gary Joseph | June 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I am a big fan of AJ Jakubowska. I have known her for years and believe her to be an excellent lawyer and mediator. However, being a fan does not mean agreeing with everything said and I most certainly take issue with AJ's most recent article ("Tips for undermining a mediation even before it starts") in this publication. Within her "tongue in cheek" article dealing with how to undermine a mediation is the following statement "advocacy has no place in mediation." What? Really? AJ, I passionately disagree with this statement.

Advocacy is defined as the art of speaking on behalf of or in support of another person. As a lawyer, especially a family law, advocacy is at the heart of what we do. We speak on behalf of our clients. We support our clients through the horrible process of relationship breakdown. As I read her article, AJ suggests that she would prefer mediation without counsel. Lawyers who dare to assert within the mediation process a legal position that may be entirely justified, to AJ, have no place in the process. Does mediation mean simply joining hands, singing together and making nice?

AJ you know that I am a big fan of mediation and successfully engage in it when appropriate but here's a surprise. - there are indeed principled and well-supported legal positions that are fully worthy of civilized discussion in mediation (I know you know this). There are clients who come to mediation with well-prepared (not necessarily aggressive) mediation briefs that are well-supported and that should be part of the process. A strongly articulate legal position is not a threat.

I find family lawyers today, especially young family lawyers, almost embarrassed to aggressively assert a legal position in support of their client. Of course, there is the otehr group of family lawyers who repeatedly turn their cases over to mediation to allow the mediator to figure out a case too complex for that particular lawyer. This latter group of fmaily lawyers practise what I call lazy lawyering and is an increasing sample within our bar. Put parenting matters aside for the moment within this arguement. There remains well established legal precedent that can and should be relued upon in support of a client's posiition. That is part of your job as your client's advocate. You need to figure it out before mediation not within mediation. Why taking principled legal positions is now viewed as antithetical to successful mediation is beyond me (perhaps an overstatement here but certainly the tone of AJ's article suggests that to me).

Am I overreacting? I am sure that AJ will tell me so. Will I get the usual stream of "hate mail" accusing me of being too litigious? Yes, for sure. I really do care about my clients and have genuine empathy for their suffering in relationship breakdown, but we do the client no favour by compromising their legal positions. (Again, I am not talking about parenting cases.) I have seen far too many cases of "buyer's remorse" where clients move away from the pain of the breakdown and seriously question the judgement of their counsel in allowing them to compromise significant claims uncessarily. Guess what, OMG, we still have courts to decide disputed cases. Justices will do their job when called upon. Counsel do your job! Do everything reasonably possible to settle your cases. Discuss and recommend ADR when appropriate but also be strong enough ot recommend against compromise when compromise is not the best outcome for your client and the claim is being pursed on a principled and emotion free basis.

I know I repeat myself. A sure sign of age but remember I do not write to be popular. I write to express my views and hopefully contribute to dialogue necessary to serve our clients better ... honest!

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Gary Joseph cited in decision by Supreme Court of Canada

Thu, 09 Jun 2022 11:42:16 GMT

Gary Joseph | Jun 2022

Gary Joseph was recently cited in this decision by the Supreme Court of Canada. To review the decision and citation click the link below:

https://www.canlii.org/en/ca/scc/doc/2022/2022scc24/2022scc24.html?searchUrlHash=AAAAAQAGV2lsdG9uAAAAAAE&offset=0

Family court TV a bad idea

Mon, 16 May 2022 13:29:00 GMT

Gary Joseph | May 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

The Johnny (Depp) and Amber (Heard) show is the talk of the town. Each day their televised defamation trial offers salacious details of an obvious dysfunctional relationship. Once again, the debate over TV in our courts has raised its ugly head, driven likely by the unrelenting need in our society for more and more intrusion into our private lives.

Talk radio was full of callers loving the telecast and proclaiming their inalienable right to know what goes on in the courts. If those of us who oppose TV coverage of trial proceedings needed any support for our views, look no further than such callers and the multitude of newspaper, magazine and other media coverage of this event which I more accurately described as a circus rather than a trial. Neither party to this proceeding
can escape with his/her dignity intact regardless of the outcome. Of equal concern is the attraction this trial has generated in various interest groups who have vocally chosen sides to further their own views and causes.

I speak now only as a family lawyer. For most parties to protracted high conflict divorces, the experience is one to never experience again. These cases are financially and emotionally exhausting. The damage to the family and more importantly to the children is well known. Often the damage is irreparable. Those of us who “toil in the fields of matrimonial discord” try very hard to shield the children involved in these disputes from the parental conflict. We remind our clients of the permanent record they are creating when they file with the court rabid attack affidavits. The thought of further exposing these disputes to the TV camera is disturbing. In my view, the less these disputes are publicly exposed the better.

The potential harm of television exposure can be easily considered. Imagine the scene at a school the day after classmates of a child whose parents are engaged in televised divorce proceedings have viewed the proceedings and pepper the poor child with questions or worse, ridicule.

No matter how high profile the parties and no matter our open courts policy (which, of course, I greatly respect), I can see no compelling reason why family law proceedings should be televised. The dignity of our courts, judges, court staff and participants would be subject to unwarranted and often misinformed granular scrutiny by commentators more interested in sensation than fact. The camera is not always kind and can be manipulated to favour one side over the other. The visual intrusion into the personal lives of separating parties is unacceptable. I can think of no argument that would convince me otherwise.

For those who need a fix of salacious TV, American television is full of Court TV, The People’s Court, Judge Judy and of course the most recent, the Johnny and Amber show, both of whom most likely have much left in their arsenal of shocking details of their horrible relationship.

Rest assured that there are many other such divorce spectacles waiting to air once Johnny and Amber exit the court stage. Keep TV out of our family courts, maintain some dignity for the participants and their children.

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Mentors in the legal profession

Sun, 08 May 2022 12:33:44 GMT

Gary Joseph | May 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

For the most part change is a good thing. More specifically and germane to this piece, changes in the practice of law since I was called appear to me to be mostly positive, but I still regret some. I try so hard to avoid sounding like some old dinosaur lamenting the old ways of practice, but sometimes I just can’t help it. I am what I am, and I say what I think. So here goes ...

I sincerely regret the loss of true mentorship in the practice of law. When I was called in the late 1970s, there still existed this informal but very much recognized system of climbing the ladder to practice. Law school of course, followed by articling, followed by the bar admission courses and exams led to one’s call to the bar. But the training did not stop there. Young lawyers traditionally found mentors, again I say informally, but mentorship was most definitely seen as a further part of the ladder to be climbed to successful practice. Young lawyers found older more experienced counsel to lead them into the profession. In my view there is no substitute for experience and the challenges of providing legal services to the public are enormous. A guide through the many minefields presented is necessary.

Today much of that view has vanished. I recognize that the law society has an informal program for mentorship, and I understand that some of the other fine organizations such as The Advocates’ Society offer mentorship in some form. However, the world has changed. Some of the need for mentorship may have disappeared with the advent of social media and the Internet. Young lawyers have a vast opportunity to find information and some guidance from the net. Young lawyers today appear bolder for the most part than those when I graduated.

Most of you reading this article would not remember the movie The Paper Chase . Set in Harvard Law School in the early 1970s we share the frightening experience of the main character, Mr. Hart’s terrifying introduction to the law. I remember most of us law school graduates as much like Mr. Hart when we ultimately got called to the bar, somewhat tentative and slightly intimidated to be actually asked to practise law. Today, young lawyers are bolder, most assured. That is a good thing but perhaps not the best thing.

Perhaps we need to add to the CPD requirements some form of mandatory mentorship for new calls to the bar. More experienced counsel need to step up and perhaps achieve some of their mandatory CPD through mentorship of young lawyers. Somehow, we need to return to some of the old ways. All change is not good change. There are indeed some things in our past that should be carried forward so that the public is better served by our profession. Mentorship is most definitely one such thing. Please listen to me before this dinosaur becomes extinct!

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Cross Border Challenges in Family Law

Thu, 28 Apr 2022 01:44:14 GMT

Kristy Maurina | Apr 2022

This article was originally published in volume 35 of Ontario Family Law Reporter, part of LexisNexis Canada Inc.

There are various and complex legal issues which can arise for family law practitioners in matters involving cross-border
families. The issues can be extreme, such as matters involving international child abduction, or involve less conflict, but are
nonetheless issues to which family law lawyers must turn their minds. One of the most extreme cross-border issues is that involving international child abduction. This often involves an allegation that a child has been wrongfully removed to Ontario, or is being wrongfully retained in Ontario, by a parent. When this occurs, the first question the lawyer must answer is whether the country from where the child is alleged to have been abducted from is a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

If the country is a signatory to the Hague Convention, then the process which follows is governed by the Hague Convention
(which is enshrined in Ontario law under s. 46 of the Children’s Law Reform Act (“CLRA”).1 If the country is not a signatory to the Hague Convention, then the matter falls under the CLRA....

Kristy Maurina is a partner at MacDonald & Partners LLP where she has practiced family law exclusively since 2008. Kristy’s practice includes all areas of family law including negotiation, mediation, arbitration and litigation, with a particular
interest in matters involving international child abduction, including Hague Convention and non-Hague Convention and jurisdictional cases.

To read the full article, click the button below to download the PDF.

Support for adult children and sharing in post-separation increased income

Wed, 27 Apr 2022 11:16:32 GMT

Michael Stangarone and Juanita Valencia | Apr 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

In the recent case of Hendriks v.Hendriks 2022 ONCA 165, the Court of Appeal addressed the issues of variation in spousal support and child support following a post separation increase in income, as well as child support payable for children above the age of majority pursuing post-secondary education.

The court’s decision is significant because it serves as a reminder that there is no guarantee that a spousal support recipient will share in a payor’s post-separation increase in income, and that table child support under the Child Support Guidelines is not presumptive for children above the age of majority.

The decision also serves as a reminder that determining whether a variation in spousal support obligations is warranted is a context-specific analysis and will not be solely determined by whether a term in the existing order contemplates variation.

Finally, the court’s decision reminds us of the importance of relying on adequate evidence when seeking a variation in support.

The parties were married for 18 years and separated in 2010. There were three children of the marriage. In May 2015, the parties entered into a consent final order that incorporated terms set out in minutes of settlement (“the Mossip Order”). The relevant terms of the Mossip Order were as follows:

The father would pay ongoing child support for the three children based on an income of $78,528;
The father would pay 75 percent of the children’s future s. 7 expenses; and
The father would pay ongoing spousal support in the amount of $150 per month.

In 2018, the parties consented to the termination of child support for the eldest and middle children.In August 2018, the father moved to Qatar for his employment, and his income increased to approximately $214,000. The mother brought a Motion to Change. She sought increased spousal support based on her sharing in the payor’s post-separation increase, a variation of the termination date for the children and monthly child support for the adult children.

The mother's motion was dismissed. The mother appealed.

The motion judge determined that the father’s increase in income was not a material change in circumstances because, on the mother’s own affidavit evidence, it was in line with their expectations during the marriage when the father decided to obtain a master’s degree in social work. Moreover,the motions judge concluded that the increase in income was attributable to an intervening cause: the reorganization of the father’s employment arrangements, his new marriage, and his lifestyle changes, including his move to Qatar.

For these reasons, the motions judge held that the mother was not entitled to share in the post-separation increase.

This approach is in line with the general approach by Canadian courts, which is to treat post-separation increases in a payor spouse’s income as a matter of judicial discretion that must be exercised in the circumstances at hand and in light of the principles and objectives that govern spousal support. For example, in Thompson v. Thompson 2013 ONSC 5500, the court held at para.103 that “a spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases.” In other words, there is no presumption that the recipient spouse’s standard of living should increase post-separation only on account of the payor’s increased income.

Moreover, in most cases, the right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims for spousal support. The most critical factor in these cases is whether there is a sufficient connection between the recipient’s post-separation increase in income and the parties’ marriage and/or the actions and contributions of one recipient spouse on the other (see Thompson v. Thompson at para. 103 and Marinangeli v. Marinangeli [2003]O.J. No. 2819 (ONCA)).

The Court of Appeal held that the motion judge erred by failing to consider whether the mother faced a material change in circumstances. The court confirmed that a reduction or termination of child support constitutes a change in circumstances for the purposes of seeking a variation in spousal support. In this case, the fact that the father was no longer paying table support for three children constituted a change in circumstances for the purpose of seeking a variation order under s. 15.3(3) of the Divorce Act , and therefore satisfied the threshold for variation.

The court then had to determine what variation was required to be made. The court found that during their marriage and even after the separation, the mother had assumed the majority of the household and child-care responsibilities, which had impacted her ability to pursue her business and career.

However, because the motion judge found that the mother was not entitled to share in the father’s post-separation increase in income, the assessment of the appropriate variation had to be determined using the father’s income at the time of the Mossip Order, $78,528, and not his post-separation increased income. The court ultimately time-limited spousal support in the mid-range under the Spousal Support Advisory Guidelines based on that income level, with a termination date.

In ordering a variation in spousal support in this case, the court confirmed that a variation in support may be ordered even when there is no term in the existing order/separation agreement/minutes of settlement that contemplates variation.

Finally, the court concluded that the motion judge was correct in declining to order table support for the adult children given the lack of evidence regarding their financial means and needs. The court reiterated that the onus is on the party seeking support to demonstrate that the adult child requires educational support, and that the insufficient evidence provided by the mother failed to discharge that onus.

However, the court left it open to the mother to apply for support in addition to the s. 7 expenses upon presentation of adequate evidence.

Michael Stangarone is a partner with MacDonald & Partners LLP where he practises exclusively in family law. Juanita Valencia is an associate at MacDonald & Partners LLP . Valencia obtained her law degree from Osgoode Hall Law school, where she completed an intensive program at Parkdale Community Legal Services and where she co-founded a student group for Latin American law students.

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Jurisdiction issues regarding child support in international cases

Thu, 24 Mar 2022 15:43:03 GMT

Michael Stangarone and Juanita Valencia | Mar 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

In the recent case of Ontario (Family Responsibility Office, Director) v. Bougrine [2022] O.J. No. 939, the Ontario Court of Appeal addressed whether an Ontario court could make a support order when such an order already exists in Finland, but that order is unenforceable in Ontario because it has been set aside by an Ontario court.

The legislation at issue was the Interjurisdictional Support Orders Act , 2002, S.O. 2002, c. 13 (ISO Act), which allows parties to obtain, vary and enforce support orders involving one party who lives in Ontario and one party in a reciprocating jurisdiction. Once an order has been
registered/established/varied, it can be filed with the Family Responsibility Office (FRO) for enforcement. The FRO will then enforce such an order the same way it would enforce an Ontario order.

The case involved a couple who was married in Finland in 2003, had two children and divorced in 2004. Hassan Bougrine was a resident of Ontario since 2007, where he was employed as a professor at Laurentian University and as chair of the university’s commerce department. Catarina Krause had resided in Finland with the two children since their birth, except for a 14-month period between 2012 and 2014 when Bougrine abducted the children and took them to Morocco. Finland is a reciprocating jurisdiction pursuant to the ISO Act.

In 2010, a court in Finland awarded custody of the two children to Krause and made a support order requiring Bougrine to pay child support (the “Finnish order”). Bougrine appealed this decision to the Finland Turku Court of Appeal, which dismissed his appeal in 2011. Bougrine paid child support for a brief period in 2009 and 2010 but failed to pay any support from 2010 until June 2019.

In 2014 the Interjurisdictional Support Orders Unit (the “ISO Unit”) of the FRO received a letter from
the minister of justice in Finland requesting the registration of the Finnish order and the 2011 appeal order in Ontario for enforcement against Bougrine and claiming support arrears as of Sept. 17, 2014. The orders were sent to the Ontario Court of Justice and were registered in December 2014.

Bougrine brought a motion in the Ontario Court of Justice to set aside the registration. Bougrine
argued that his permanent residence was in Morocco and that he had not received notice of the
Finnish proceedings. In 2015, the motion judge set aside the registration of the Finnish order on the basis that Bougrine did not have proper notice or a reasonable opportunity to be heard. However, much of Bougrine’s evidence was false: he had in fact been personally served with the originating Finnish application, was present during those proceedings and had the benefit of legal counsel. Moreover, it was clear that Bougrine’s permanent residence was in Ontario, where he had been employed full time since 2007 and where he owned real property.

In 2018, the ISO Unit commenced proceedings in the Ontario Court of Justice seeking support for the children in accordance with s. 21 of the ISO Act, which provides:

If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document
corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of s. 32.

The motion for child support was heard by Justice Andre Guay in 2019. Justice Guay rejected
Bougrine’s argument that s. 21 invalidated the order whose registration has been set aside as well as his argument that the matter should be returned to the Finnish courts. Justice Guay concluded that the proceeding ought logically to be brought in the jurisdiction where the income of a payor can be attached. Justice Guay ultimately made a final order in October 2019 requiring monthly payment of child support per month for the two children based on Bougrine’s Child Support Guideline income and payment of child support arrears as of May 1, 2019.

Bougrine appealed the decision to the Superior Court of Justice. The appeal judge allowed the appeal and quashed the motion judge’s decision for “want of jurisdiction.” The appeal judge’s reasoning was as follows:

1. The fact that there were now two child support orders in existence, one in Finland and one in Canada, was problematic;
2. Pursuant to Cheng v. Liu 2017 ONCA 104 (Ontario Court of Appeal), the Finnish court has
exclusive jurisdiction over child support because such court granted the divorce and issued an order for child support.

The ISO appealed.

The Court of Appeal’s decision was authored by Justice James MacPherson, who concluded that the initial decision by Justice Guay was correct.

At paragraphs 32 and 33, Justice MacPherson explained that s. 21 was triggered by Bougrine’s
conduct and that the ISO correctly brought a motion under this section “in an attempt to remedy an egregious situation — dishonest obtaining of an Ontario court order and concomitant non-compliance with a valid Finnish court order.” In these circumstances, s. 21 of the ISO Act specifically empowers an Ontario court to hear a new support application.

Justice MacPherson further held that Cheng v. Liu did not support the appeal judge’s analysis, as the issue in that case was the interplay between the federal Divorce Act and the Ontario Family Law Act . In contrast, the ISO Act is coincident in intent and purpose and explicitly provides for the exact remedy sought. Therefore, it was not open to the appeal judge to quash the motion judge’s decision for want of jurisdiction.

Finally, in addressing the appeal judge’s concern about a potential for double recovery, Justice
MacPherson clarified that the international support order regime was one of co-operation and
information sharing between experienced government agencies, who were committed to avoiding
duplication. More importantly, at paragraph 42, Justice MacPherson highlighted the real danger in
these types of situations:

“It is not potential double recovery; it is no recovery. The ISO Act, and the people who
administer it, are an important provincial, national and international vehicle in the attempt to ameliorate this real problem."

The court allowed the appeal and restored the order of Justice Guay.

The Court of Appeal’s decision is a reminder to payors under international support orders that Ontario courts have the jurisdiction to enforce these orders and that their support obligations will not necessarily be terminated if the international order is set aside. Instead, the ISO Act empowers Ontario courts to make orders that further the objectives of the Act, which is to establish a fair and workable system for providing support for dependents who have a parent/spouse living in a different jurisdiction.

Michael Stangarone is a partner with MacDonald & Partners LLP where he practises exclusively in
family law. Juanita Valencia is an associate at MacDonald & Partners LLP . Valencia obtained her law degree from Osgoode Hall Law school, where she completed an intensive program at Parkdale Community Legal Services and where she co-founded a student group for Latin American law students.

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The move back to live courts: What’s the rush?

Fri, 18 Mar 2022 20:46:44 GMT

Gary Joseph | Mar 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I have never written to be popular. Those of you who know me can confirm that I say what I think and accept the consequences. So here goes.

How was the decision to bring us back to live court made? First, the pandemic is not totally over. What’s the rush? Are we going to gear down again if the pandemic deals us another wave? Second, what about the enormous benefits to clients arising from our Zoom courts? Here’s a few:

Cost savings: why should client X pay me to sit around a courthouse waiting for my case to be heard when the billing to the client for a Zoom attendance can be focused on the time actually spent?
Convenience: why should client X take a full day off work waiting around a courthouse when an hour or two on Zoom can suffice?
Child care: why should client X, perhaps a single mother, pay for childcare for a full day when a Zoom can save her the costs?
Efficiency and work-life balance: for the profession, is there really a need to drive to court, park, wait and then drive back to the office for a 30-minute to one-hour attendance?
Institutional costs savings: surely a case can be made for infrastructure and staff savings for government by a continuation of Zoom court.

Look around, major corporations, universities, charitable foundations are all moving to hybrid returns. Try hiring now in the private sector. The first question is either “can I work from home” or “do you have a hybrid model?”

Now that we are going back, are we going to do away with electronic filing? Sure, let’s go back to long lineups in the filing office and 10-inch-thick continuing records. Forget about e-mail, let’s use only fax machines and Canada Post (snail mail). Come on, one of the few bright lights of the pandemic was the brilliantly executed transition of our courts from the 1970s model to a modern efficient Zoom/e-system.

Now before the hate mail flows, I know that we are presently dealing with a hybrid form of return. Only trials, appeals, trial management conferences and settlement conferences are in person. I understand trials. I have done several long trials by Zoom and in person is far better, but I don’t understand appeals, settlement conferences and TMCs. I know that many lawyers support the return of settlement conferences to live events. I do not. I hesitate to single out any one judge, but I will. Justice Richard Bennett of the Ontario Superior Court of Justice has mastered the Zoom settlement conference. In my view, he has evolved a “hybrid” form of judicial/collaborative settlement process that has resolved numerous cases for me during the pandemic. He doesn’t seem to need live attendances to get the job done.

A large part of my practice involves appeals. While a few (perhaps many) of you may have a laugh or two when I try to talk about my “successes” in appeal courts, let me just say that Zoom has not appeared to me to have (a) impaired my ability to present and (b) most certainly, it has not impaired the ability of appeal justices to pummel me with well thought out questions pointing out the weaknesses in my positions.

Perhaps I am over-reacting, but I am concerned. As I have said before, the practice of law has been wonderful to me but now into 44 years of practice, I have changed little or nothing. I have tried but my voice is rarely if ever heard. I will keep trying.

Let’s not go backwards. Please understand, I love going to court. The formality of the court appeals to me. I love robing. I love meeting and chatting with my colleagues at the bar, but I am not convinced that this is the best system to serve our clients. I recognize the benefits of in-person interaction, but we need to be trim, to lean down the system and make it more efficient for the clients. If that means sacrificing some of the things that I love about the system, then so be it. We must remind ourselves of the privilege of practising law and the fact that we are here to serve the public. If parting with some of the traditional trappings of an in-person court is necessary, let’s do it.

Finally, if I misunderstand the direction we are going, my apologies but the issue is important enough for us to continue dialogue. That is the purpose of this latest missive.

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Don't write judges, revisited

Mon, 28 Feb 2022 15:03:45 GMT

Gary Joseph | Feb 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I do in fact have loyal readers of my various rantings, graciously published in this daily. One such reader was kind enough to send me a decision of Justice Ronald P. Kaufman of the Superior Court of Justice in Newmarket, Ont. It is a 2014 decision that so articulately describes the problem of writing to judges that I have begged the editors to permit me this addendum to my article Stop writing to judges.

In one brief paragraph Justice Kaufman says it all. The decision is Balsmeier v. Balsmeier 2014 ONSC 3457. At paragraph 2 of the decision, responding to a 12-page fax “with endorsements attached” from counsel for the applicant and a responding letter from counsel for the respondent, Justice Kaufman states:

"Prior to briefly dealing with the substance of the emails, I am mindful of the protocol of this court in responding to unsolicited correspondence to the court by counsel. As members of the Law Society of Upper Canada, both counsel should know that it is inappropriate and unacceptable for counsel to correspond directly with the judiciary on a matter before the court, unless specifically invited to do so. The members of the judiciary are neutral, independent, impartial triers of facts, who make decisions on cases based on the evidence presented to them in court and through court process. It is inappropriate for a party to communicate with a judge outside of the courtroom, as it makes the court process unfair and leads to potential abuse of such process."

So, there you have it. In straightforward and easily understood language. Direct from a respected justice of one of the busiest courts in the province. There are other judicial pronouncements of the same kind, but you don’t need more. It really is a matter of respect, respect for the courts and the dignity of the process and respect for opposing counsel. When counsel disregard and disrespect appropriate process and at the same time opposing counsel, lay parties involved may well wonder why they should show respect.

I promise I will not write again on this subject. However, permit me one moment more to reflect upon the nostalgia occasioned for me in referencing above the name “Law Society of Upper Canada.” I know that raises ire in many, I am aware of the reasons for the change, but I believe that we can move ahead to make our profession more inclusive without forgetting or cancelling our past.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP .

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Importance of good relations with opposing counsel

Wed, 23 Feb 2022 15:12:42 GMT

Gary Joseph | Feb 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

This is a continuation of my series of articles that I earlier classified as “do as I say not as I do.” I wish I could classify them as “do as I do” but the sad reality is that is not the case.

In a recent endorsement on one of my files a justice of the Superior Court commented on the “strained relationship” between counsel. While that strained relationship is quite obviously the sole fault of opposing counsel (NOT), it is a judicial comment I regret. It is a comment that reinvigorates me to avoid any and all strained relationships with counsel. As I remind the many associates in our firm and now remind myself once again, the dispute is that of the clients not counsel. We better serve our clients by never allowing the ill feelings that may exist between the clients to spillover to the dealings between counsel.

To be frank some counsel are unnecessarily difficult, and often we feel compelled to respond in kind. There is also, of course, the client pressure to “be tough,” to be their “soldier” in the battlefield of matrimonial conflict. Obviously, this is a mistake. Our role is to avoid conflict and move to resolution wherever possible. That does not mean to capitulate to unreasonable positions. It means to seek compromise where appropriate and to always remember that we are “family lawyers” and the family unit while presently asunder must be respected.

In the very famous writings of General Sun Tzu, The Art of War , it is written that the ultimate achievement is to defeat the enemy without even coming to battle. Put in simpler terms, the best battle is the battle never fought. This to me, after long years of engaging in matrimonial battle (I have the “bruises” to prove it), is the ultimate wisdom to be applied in family law matters.

The Rules of Professional Conduct (Law Society of Ontario) contain, inter alia , a code for how we as counsel deal with each other. Beyond the broad requ irements of courtesy, civility and good faith, Rule7.2.1.1 requires that we agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities and similar matters that do not prejudice the rights of the client. It is here that family law counsel can make great strides in creating an atmosphere of goodwill and co-operation. Of course, where client rights may be prejudiced we cannot and must not agree but where not, consents to reasonable requests are essential. An agreement to a brief adjournment or a consent to late file goes a long way to encouraging co-operation between counsel to the benefit of the client(s).

Working together with opposite counsel for the betterment of the family is not a dereliction of your duty to the client. Judgment is an essential tool of good lawyering. Pick your battles wisely and avoid them when you can. Sun Tzu wrote this over 2,500 years ago, and it remains a useful guiding principle for we family lawyers.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP .

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Young girl habitually resident in Canada stays with Manitoba father in Hague Convention case

Tue, 15 Feb 2022 17:36:56 GMT

Meghann Melito & Michael Stangarone | Feb 2022

A recent case highlights the importance of supporting evidence in abduction and wrongful retention applications launched under the Hague Convention, says Toronto family lawyer Meghann Melito .

In G. v. R ., the mother of a three-year-old sought to have her daughter returned to Costa Rica, accusing the Canadian father of wrongfully retaining the girl following a trip to Manitoba in the spring of 2020. The mother claimed that the visit was only supposed to last 30 days, blaming the Covid-19 pandemic for the extension of the girl’s stay before she finally filed her request for return in September 2021.

Both Canada and Costa Rica are signatories to the Hague Convention, but Justice Gwen Hatch of the Manitoba Court of Queen’s Bench dismissed the mother’s application, finding that the parents jointly intended to relocate their child to the province, and that she had been habitually resident with her father in Rorketon, Man., since moving to live with him.

“The mother took some liberties with the facts, and there was no evidence to back up what she said about the trip being temporary,” says Melito, a partner with MacDonald & Partners LLP , who acted for the successful father along with partner, Michael Stangarone .

“It was pretty clear from her correspondence that she wanted the family to live in Canada because she thought it was a better place for them all. However, the determination of a child’s habitual residence is not conditional or dependent on reconciliation of the family unit,” Melito adds.

According to the ruling, the couple first met in Costa Rica in 2016 while the father was on vacation in the off-season for his construction job, and entered a relationship soon after. When the child was born in October 2018, she became a dual citizen of Costa Rica and Canada, and the parents decided that the whole family should relocate to Canada, with the father sponsoring the mother and her two older children for permanent residence.

In the meantime, the father continued travelling between the countries, working in Canada during his busy season and living with the mother and child for months at a time in the winter.

The decision says that the relocation plan went into action in March 2020 when the father took his daughter to Manitoba and made a visitor visa application for the mother to stay with them for 11 weeks, during which time they intended to file the sponsorship application.

However, things quickly went off the rails when the mother’s visitor visa was denied and she had to remain in Costa Rica. Although she did apply for permanent residence in June 2020, she did not make it to Canada before the pair separated in the summer of 2021, ahead of the mother’s Hague Convention application for the return of her child.

Melito says the mother’s case was not strong based on the evidence and weakened further by her attempt to assert two alternative dates – April 2020 and September 2021 – for wrongful retention of the child by the father.

Because the first date – triggered by the child’s move to Canada – came more than 12 months before the mother’s application, it opened up a possible defence under Article 12 of the Hague Convention, which allows a wrongfully retained child to remain with the parent if they have become settled in their new environment.

In the end, Justice Hatch came down comprehensively in favour of the father, concluding that the Hague Convention did not apply on either date because the child was habitually resident in Canada.

Even if she had decided that the child remained habitually resident in Costa Rica in April 2020, the judge concluded that she should stay in Canada anyway, noting the girl’s close bonds with her local relatives and neighbourhood friends, as well as her disconnection from the country of her birth.

“In my view, it would be traumatic for the child to have her life disrupted and to require her to live in a country that she no longer has familiarity with, whether that relates to language, food, environment or physical location,” wrote Justice Hatch, the associate chief justice of her court’s family division.

Had the Convention applied on either alleged date of wrongful retention, the judge said she would have invoked the exception in Article 13 that allows a child to stay where they are when the parent seeking return consented to the child’s removal.

“In my view, the mother’s own communications and ongoing participation in the sponsorship process along with her delay, constitute consent to and/or acquiescence in the child remaining in Manitoba,” Justice Hatch concluded.

"You can’t just change your mind, which is what seems to have happened in this case,” Melito says.

Although she has significant experience litigating child abduction matters under the Hague Convention in Ontario, the case provided Melito with her first exposure to the procedure in Manitoba, where provincial government lawyers handled the case on behalf of the mother.

“In Ontario, private counsel are retained and paid for by the parties, so it was pretty interesting to work opposite Crown lawyers,” she says.

The need for counsel to take on unpopular cases

Tue, 15 Feb 2022 17:22:54 GMT

Gary Joseph | Feb 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I was one of Zoran Fotak’s counsel (Capone v. Fotak 2021 ONSC 7992), accepting a retainer after the 10 court orders referred to in Nathalie Boutet’s article (Case a wakeup call in dealing with difficult clients) published Feb. 9. I know Nathalie and have enormous respect for her as a lawyer and ADR practitioner but her views as published added to my long list of concerns about the current practice of law and in particular the practice of family law.

Let me first note that the arrival of ADR in family law is a long overdue addition to the toolbox of approaches to resolving family law disputes. Often (not always) it brings to an end high conflict matters. Compromise and efficiency save time and expense for families caught in the vortex of marital breakdown.

My late and great former senior partner James C. MacDonald was an innovator in bringing to Ontario alternative methods for resolving family law disputes, but he also was a strong believer in the need for courageous representation and the development of legal precedent. Under his mentorship (for which I am forever grateful) he encouraged me to take on challenging matters, to push the bounds of legal precedent and to not shy away from difficult clients if justice demanded representation. The facts summarized by Ms. Boutet are incomplete and leave the reader unaware of the significant legal issues (not to mention disputed factual matters) raised in the Fotak case.

Fotak raised jurisdictional concerns relating to matters under the Convention on th e Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters . There were also serious issues relating to a stay of proceedings and claimed credits against arrears. Ultimately, he was unsuccessful and Justice Sharon Shore, who heard the stay motion, wrote 13 pages exploring the factual and legal issues. She determined the service issue on a factual basis and dismissed the request for a stay. That does not mean that the issues raised were not serious and legally challenging. The dismissal of the motion does not mean that it should not have been brought. Nor, of course, was Ms. Boutet privy to discussions between the client and two (not one) senior counsel acting for him leading up to the motion.

Ms. Boutet raises important issues in her piece but, with respect, to have omitted the core of the dispute and use only part of the decision as the foundation of her thesis is wrong. Further and just as worthy of comment is the message sent to family law counsel. Yes, I 100 per cent support ADR and meaningful efforts to calm and resolve family law matters. But I also recognize the need for counsel to take on unpopular cases where important legal issues arise or where a perceived injustice may exist.

Precedent and common law decisions are the foundation upon which considered advice is given by experienced counsel. Without the evolution of the law through well argued and thoughtful presentations to our courts of challenging issues, it will become stale and unable to meet the changing times. Family law counsel need precedent and sometimes that requires unpopular cases to be argued.

Of course, we are bound by our duties under the Rules of Professional Conduct , and we are morally obligated to do all we can to resolve family law disputes outside of courts. I say also though that we are bound to be critical thinkers, brave counsel and advocates for justice. Think about the social and legal changes that have arisen from counsel willing to take on unpopular clients or highly contentious legal issues (gay marriage, abortion are but two that quickly come to mind) to court.

Family law counsel must step up to the plate at times even if the cause is unpopular, the client difficult or the facts concerning.

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No right to remain silent

Thu, 20 Jan 2022 14:03:49 GMT

Gary Joseph | Jan 2022

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

As a teenager (with clear ambition to be a “trial lawyer”), I constantly watched police crime shows on the family black and white TV. I loved the action and the inevitable capture of the bad guys. The capture always led to police providing the Miranda warning: “You have the right to remain silent, anything that you say will be taken down and can be used against you in a court of law,” to the prisoner. I later learned that the Miranda warning evolved from a 1966 decision of the U.S. Supreme Court in a case called Miranda v. Ariz . 384 US 436 (1966). This warning is based upon the Sixth Amendment to the U.S. Constitution and the Fifth Amendment right to remain silent. For many years I believed the same rights existed in Canada.

Family lawyers are very familiar with the frequent intersection of family and criminal law. Unfortunately, many relationship breakdowns lead to criminal charges. When family law counsel experience this intersection, I find that there is often confusion as to rights that exist for the accused to remain “silent” within family law proceedings while criminal charges make their way through the criminal justice process. In Canada there is indeed a right to protection from self-incrimination but it differs significantly from that right in the United States.

Family lawyers need to have a working knowledge of s. 5(1) of the Canada Evidence Ac t, s. 9(1) of the Ontario Evidence Act and s. 13 of the Canadian Charter of Rights and Freedom s.

These provisions, as explained by various cases, provide the framework for the Canadian protection from self-incrimination. The Charter provides that a witness who testifies in any proceeding has the right not to have any incriminating evidence used to incriminate the witness in any other proceedings (except in prosecution for perjury or for the giving of contradictory evidence). Both evidence Acts indicate that a witness is not excused from answering an incriminating question or one that tends to expose the witness to liability in civil proceedings. In my search for case law on this topic, the clearest distillation of these related provisions comes from the Ontario Court of Appeal in the case of Catalyst Fund General Partner v. Hollinger Inc. [2005] O.J. No. 4666 at para 4. I quote as follows:

"In both Canada and the United States, the right to protection from self incrimination is an important right that is safeguarded. The difference between how that right is protected in Canada and the United States lies in the heart of this appeal. In Canada a person has the right not to have any incriminating evidence that the person was compelled to give in one proceeding used against him or her in another proceeding except in a prosecution for perjury or for the giving of contradictory evidence. Thus, in Canada, a witness cannot refuse to answer a question on the grounds of self-incrimination, but receives full evidentiary immunity in return. In the United States, a witness can claim the protection of the Fifth Amendment and refuse to answer an incriminating question. Once the answer is given, however, there is no protection."

Thus, both countries offer protection against self-incrimination but in different ways. No one in Canada can “plead the Fifth.” Believe me, I saw a witness do just that during a family law trial many years ago. Once the presiding justice was able to remove the smile from her face, she gently reminded the witness that no such right existed. I thereafter finished my devastating cross-examination of that witness (well to be honest, not so devastating but I tend to remember most of my past cross examinations as devastating).

So, some takeaways from this article: As family lawyers we must appreciate the protections afforded witnesses against self-incrimination and, just as importantly, we must direct young and aspiring lawyers away from American TV shows. We need
more Canadian crime shows!

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

This article by Gary Joseph was recently featured on The Lawyer's Daily .

The joys of appellate advocacy

Thu, 30 Sep 2021 17:01:44 GMT

Gary Joseph | Sep 2021

Gary Joseph is featured in a recent article on The Lawyer's Daily .

(Sept 27, 2021, 1:56 PM EDT) -- In her excellent summary of the recent decision of the Ontario Court of Appeal in N. v. F., 2021 ONCA 614, The Lawyer's Daily reporter Amanda Jermoe highlights the ongoing tensions within the art of appellate advocacy.

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Volgemut v. Decristoforo FC-20-2071 Decision

Thu, 16 Sep 2021 20:08:26 GMT

Michael Stangarone | Sep 2021

Justice Audet's decision in the recent case Volgemut v. Decristoforo FC-20-2071 has been made available for download.

Click the link below to read the PDF of the decision.

Ontario family law needs a college of mediators

Thu, 16 Sep 2021 20:08:21 GMT

Gary Joseph | Sep 2021

This article was originally published by The Lawyer’s Daily ( www.thelawyersdaily.ca ), part of LexisNexis Canada Inc.

I enjoy writing and do so to bring attention to cases or issues that I believe are important to the family law bar. I hope that my articles stimulate discussion among the bar. My recent comments in The Lawyer’s Daily ( Mediation: The unregulated profession ) relating to family law mediation certainly struck a nerve with many readers.

The fact that three separate “rebuttal” articles ( Family mediation: The self-regulated profession ; Ontario family mediation: World class excellence ; Holistic standards for unregulated profession of mediation ) were felt necessary highlights, for me, part of the problem. There is not one governing body for mediators. I appreciate the rather passionate responses and criticism of my views, but I stand by them. Mediation is indeed an unregulated profession!

I believe that my critics view my thoughts through too narrow a lens. Each of the responses, detailed and passionate as they were, came from those with “skin in the game.” I have none. I am just a family lawyer. I regularly engage in mediation as counsel and regularly recommend to clients that they engage in mediation. However, I don’t mediate and don’t claim to have the skills necessary to do so. None of those who responded can say the same and no one in response confronted directly several obvious facts:

1. Each of the organizations referenced in the rebuttal articles are strictly voluntary;

2. There is no mandatory membership in any of the referenced organizations for family mediators in Ontario;

3. There is no mandatory screening requirements for mediation in Ontario. While these voluntary organizations may insist upon same for their members, mediations continue to occur throughout the province without screening;

4. Voluntary organizations may set standards and demand continuing education, however, the failure to comply may lead to expulsion from the voluntary organization but cannot prevent a mediator from mediating.

I recognize and respect the fine work these mediation organizations do but let’s not pretend that these groups lack a self-promotion component. I don’t say this pejoratively, but it does exist. Those who wrote the rebuttal articles are certainly well intentioned and provided useful information about mediation services in the province, but they cannot deny the fact that these organizations promote the services of their members. Nothing wrong with that but that doesn’t obscure the facts noted above.

Consider this: a person trained in social work (even with a master’s degree in social work) cannot hold him/herself out as a social worker without registration in the College of Social Workers. Either you are registered and subject to the standards and disciplinary aspects of the college or you are not allowed to hold yourself out as a social worker. Not so with mediators.

Consider this: you cannot arbitrate family law disputes in Ontario without the mandated training and full compliance with the regulations passed pursuant to the Arbitration Act. Not so with mediators. No such legislation exists to govern their training, standards or discipline.

Consider this: paralegals are now fully regulated by the Law Society of Ontario. They are subject to mandatory continuing education and discipline for breach of the standards of their profession. Again, not so with mediators.

I suggest that a college of mediators be established with training requirements, standards and a disciplinary process. To mediate family law matters, membership in the college would be mandatory. The College of Social Workers has the right idea. As noted above, either you are a member or you cannot hold yourself out to the public as a social worker. The same should apply for mediators. Ask yourself whether you believe that voluntary governance works in the public interest. Generally, I believe in less government but in the case of services of this kind I accept the need for robust governance. Screening should be mandatory and legislated in the same way that it is for arbitrations. A comprehensive set of regulations should govern mediation contracts, process and those who mediate. Given the ever-increasing emphasis on ADR in family law, nothing less is acceptable.

I have a number of thoughts and ideas about family law arbitrations. I am sure those views, when published, will endear me to those who arbitrate in the same way my views on mediators have won the hearts and minds of those who mediate ... not!

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Hynes v. Snook: Helpful review of trust principles concerning common law relationships

Thu, 16 Sep 2021 20:08:17 GMT

Michael Stangarone and Bard Suen | Sep 2021

In Hynes v. Snook [2021] N.J. No. 139, the Court of Appeal of Newfoundland and Labrador provides a lucid analysis of the principles regarding spousal support and unjust enrichment claims following...

Original article posted by The Lawyer's Daily , and requires a subscription to read.

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Importance of ‘economic self-sufficiency’ on spousal support reviews emphasized by court, counsel says

Thu, 16 Sep 2021 20:08:13 GMT

Michael Stangarone & Stephen Kirby | Sep 2021

Michael Stangarone and Stephen Kirby are featured in a recent article on The Lawyer's Daily by Amanda Jerome.

The Ontario Court of Appeal has dismissed an appeal on spousal support orders after the dissolution of a common law relationship in a decision, counsel says, highlights the importance of “economic...

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OBA Award for Excellence in Family Law 2021 - Gary Joseph

Sat, 03 Jul 2021 21:46:22 GMT

Gary Joseph | Jun 2021

The OBA's Family Law Section has announced Gary S. Joseph , Managing Partner, MacDonald & Partners LLP as the recipient of its 2021 OBA Award for Excellence in Family Law in Memory of James G. McLeod.

Two of our lawyers have received the award. James C MacDonald received the very first award in 1997 and now Gary Joseph in 2021.

This prestigious award recognizes the following:

teaching of Family Law and practice
taking tough cases forward and precedent setting cases, and/or involved in advancing the practice of alternative dispute resolution
development of Family Law, including lecturing, scholarly writing, lobbying, and development of policy and family law legislation, including new directions involving inter-disciplinary and comprehensive approaches to dispute resolution
enhancement of the practice of Family Law
leadership in the Family Law Bar

Stay tuned for award presentation details which will be announced soon!

The Demise of Oral Advocacy?

Sat, 03 Jul 2021 21:44:29 GMT

Gary Joseph | Apr 2021

While reflecting on my advocacy this week, I had time to pause and think about how I got to this point in my career. More specifically how whatever skills I do possess as an advocate, came to be.

Two immediate thoughts came to mind, watching and doing. Having a great interest in the development of young advocates, I then reflected on what opportunities I had that perhaps they do not and will not have to develop their skills.

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Family Resemblance: Piercing Corporate Veil in Family, Corporate Law

Sat, 03 Jul 2021 21:41:37 GMT

Gary Joseph | Apr 2021

When a marriage breaks down and corporations are involved, both family law and corporate law can be engaged in sometimes complementary, sometimes conflicting ways. This is particularly the case with piercing the corporate veil.

Parties and counsel involved in these situations should keep both family and corporate law perspectives in mind, or risk being surprised by the approach the court can take.

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Wrongfully retained child returned to mother in Costa Rica under Hague Convention

Sat, 03 Jul 2021 21:39:19 GMT

Michael Stangarone | Apr 2021

A recent decision offers crucial guidance on wrongful retention cases under the Hague Convention, says Toronto family lawyer Michael Stangarone.

While many cases decided under the Convention involve parental abduction between signatory countries, the mother in V. v. K. initially consented to her five-year-old daughter’s visit with the girl’s father in Sault Ste. Marie, Ont.

The mother agreed to a two week visit, but when the father indicated his unwillingness to let her leave, the mother applied for the child’s return to Costa Rica under the Hague Convention. In his March 18 ruling, Ontario Superior Court Justice Michael Varpio sided with the mother.

Habitual Residence and Wrongful Retention

“The judge had to decide where the child’s habitual residence was in the context of a wrongful retention, and I think he delivers an excellent and comprehensive ruling; the analysis is spot on,” says Stangarone, a partner with MacDonald & Partners LLP , who acted for the successful mother along with fellow firm partner Kristy Maurina.

Both have significant experience litigating child abduction matters under the Hague Convention, to which both Canada and Costa Rica are signatories.

“It was also a great decision for our client, who is very relieved at the result,” Stangarone adds.

Complicated Matters Due to Parents' Relationship

He says matters were complicated in the case by the on-off nature of the parents’ relationship, as well as the back-and-forth nature of the child’s residence, which alternated between Canada and Costa Rica for months at a time over the last three years.

According to Justice Varpio’s decision, the crucial time periods were a six-month stay the child spent in B.C. between September 2019 and March 2020, followed by a further six months in Costa Rica until September 2020.

During the B.C. visit, the mother was in Canada on a tourist visa, while the father worked a full-time job in the province. The child also attended school and was registered with a local dentist and doctor. After travelling to Costa Rica, the girl again registered with a local doctor and dentist, and began ballet lessons, while the mother also showed evidence that she was to be enrolled in school, before the trip to Sault Ste. Marie in September 2020, when the girl travelled across international borders with her grandmother to stay with her father.

In court, the father argued that the Hague Convention should not even apply to the case, claiming the child’s habitual residence had always been Canada. Alternatively, he used text messages between the parents to argue that they had agreed their daughter should stay with him for at least one year.

A Question of Habitual Residence

However, after applying the hybrid test laid out in the landmark Supreme Court of Canada ruling Office of the Children’s Lawyer v. Balev , the judge found that the child’s habitual residence was Costa Rica when she left to visit Sault Ste. Marie.

Despite finding the child’s permanent residence was B.C. during her stay there, Justice Varpio concluded that the situation changed when she moved with her mother to Costa Rica in March 2020, based on the length of the stay, her enrollment in school and the father’s lack of action to bring her back to Canada.

“The critical question is where the child’s habitual residence was at the time immediately preceding the wrongful retention in September 2020, and the judge agreed with us that the focal point of her life was in Costa Rica,” Stangarone explains.

Social Media Evidence and Intent

He says the decision also provides useful guidance on the issue of acquiescence and the use of social media evidence.

“In family law, social media and text communication is the new frontier, because it can help demonstrate the true intentions of the parties,” Stangarone says.

The father in the case attempted to use texts between the parents to suggest that the mother had accepted the child’s stay in Ontario would be longer-term or permanent. For example, in one text, she agreed to let the child finish the school year in Ontario.

However, the judge took notice of other communications between the parties, concluding that the mother’s concessions were in fact part of her negotiations in response to the father’s abusive tactics.

“This is not acquiescence by the mother since it was clearly made as a result of coercion,” Justice Varpio wrote.

“When you look at all the evidence, you can see that the extensions were the mother’s desperate attempt to secure the return of her child once she knows that the father is intent on keeping her there,” Maurina says.

Court Examines Equality of Standard of Living in Determining Spousal Support

Sat, 03 Jul 2021 21:37:01 GMT

Michael Stangarone | Mar 2021

Stoodley v. Stoodley 2021 NLCA5 is an important decision of the Newfoundland and Labrador Court of Appeal addressing the issue of spousal support and the application of the Spousal Support Advisory Guidelines (SSAGs) involving high-income individuals in a long term marriage. The case offers a comprehensive analysis of the principle of equality of standard of living.

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Stephen Kirby Interview with Walsh Family Law Moot

Sat, 03 Jul 2021 21:34:15 GMT

Stephen Kirby , an Associate at MacDonald & Partners sheds light on how to best serve a client's interests and shares what makes practicing family law so interesting.

Stopping Anti-Vaccination Debate in the Courts

Sat, 03 Jul 2021 21:30:29 GMT

Gary Joseph | Mar 2021

Lawyer David Frenkel argued that the justice system should not have given a platform in recent court proceedings for a mother to argue against the vaccination of her children with her estranged husband. I vigorously disagree with this view.

Let me also identify that my personal views on vaccination play absolutely no part in the views I am about to express.

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COVID and the Continuation of Child Support

Sat, 03 Jul 2021 21:26:00 GMT

Gary Joseph | Mar 2021

While the media focuses during the pandemic has been on primary and secondary school challenges, college and university students have also been greatly impacted. Many post-secondary programs have been cancelled, suspended or deferred. Part-time jobs are almost non-existent and many children have chosen to defer their entry into the world of post-secondary education rather than do it online. In my view the courts and lawyers in general need to consider all these factors when determining the issue of the continuation of child support for adult children.

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Kristy Maurina Featured on Global News

Sat, 03 Jul 2021 21:20:19 GMT

Kristy Maurina | Mar 2021

Big week in family law as the Divorce Act amendments come into effect. MacDonald & Partners LLP Family Law Lawyer Kristy Maurina joins Alan Carter at Global News to talk about the new regulations around domestic violence in divorce. Catch the start around 16:20.

Lawyers and the OBA Come Blow Your Horn

Sat, 03 Jul 2021 21:16:53 GMT

Gary Joseph | Feb 2021

In these bleak times leadership counts. The public needs to know that despite continual government failings, leadership can be found among the practising bar and among its leadership organizations such as the OBA. In doing so, we can help restore public confidence in the administration of justice and in lawyers in general.

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Breach of Court Orders and 'No Audience' Concept

Sat, 03 Jul 2021 21:14:47 GMT

Gary Joseph | Feb 2021

As an officer of the court, lawyers have a positive duty to advise clients of their obligations under an order of the court and the imperative of full compliance. However, the rights to be heard and the right of meaningful appeal are also important components of our system of justice.

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Streamlining Process for Review of Temporary Orders

Sat, 03 Jul 2021 21:11:30 GMT

Gary Joseph | Jan 2021

As family lawyers become increasingly busy with the certain fallout of COVID and the overburdened courts struggle to keep up, trials will be further delayed. A possible answer is some form of summary review process for orders made on temporary motions.

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Embrace of Work-Life Balance Coming to Legal Profession

Sat, 03 Jul 2021 21:06:02 GMT

Gary Joseph | Jan 2021

What we describe as "rat race culture," appears to be coming to an end. Young lawyers for the most part reject this model. The idea of servitude for years is a poison to work-life balance, and more importantly, often to overall mental health. Work addiction is not an ideal sought by the young.

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Predatory Marriage Problem Just Getting Worse

Sat, 03 Jul 2021 20:53:23 GMT

Gary Joseph | Dec 2020

he practices of family law and estates law often cross paths. One such area of overlap between the two fields is the law as it relates to what has been called the "Predatory Marriage."Consider a divorced older gentleman with two adult children.

He has worked hard all his life and wants to ensure that his estate is evenly divided between his children to benefit them and any future grandchildren.

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Last Words on Paralegals

Sat, 03 Jul 2021 20:50:53 GMT

Gary Joseph | Dec 2020

The public wants better access to justice and the LSO seems convinced that the method best to address this issue is to license paralegals to do the family law work. For many years this work has been recognized as legal work requiring an individual trained in the law and mentored into the profession through articling and bar examinations. To now suggest otherwise is an affront to many who have worked so hard to master the law...

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No to Unlimited Settlement Conferences

lmcnally47@gmail.com (Liam McNally) — Sat, 03 Jul 2021 20:48:01 GMT

Gary Joseph | Nov 2020

For too long counsel and parties have used conferences as disclosure vehicles often engaging the court in repeated events on their way to either trial or settlement. In the process, they burn up valuable resources on legal fees and wasted court time. In my view, this contributes to the increase in self-represented individuals.

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Finding of Fraudulent Conveyance in Family Law Proceeding

Sat, 03 Jul 2021 20:41:47 GMT

Michael Stangarone, Stephen Kirby | Nov 2020

Finding of fraudulent conveyance in a family law proceeding and rare vesting order hands non-compliant ex-husband’s share of the matrimonial home to former spouse

A rare vesting order granting a woman full ownership of a matrimonial home could save years in enforcement efforts against her former husband, says Toronto family lawyer Michael Stangarone.

In the recent case of I. v. I. , the judge ordered the husband’s equity in the $1-million home to be vested in his former wife’s name, to satisfy part of the equalization and spousal support lump sum payments owing to her.

According to the judgment, the man’s past misconduct in the case included removing funds from the RESP accounts of the couple’s children, as well as surreptitiously transferring funds to his mother in an attempt to have them excluded from equalization and support calculations.

“Under such circumstances, there is a legitimate fear that [the former husband] will not comply with the payment orders that I have made in this judgment,” the judge concluded. “He has shown bad faith in the past, and there is no remedy that will work.”

As a result, the trial judge Justice McDermot ordered that the husband’s 50-per-cent stake in the couple’s matrimonial home – the only major asset between the pair – should be vested in the wife’s name. Even after accounting for the $530,000 value of his equity, the husband still owed his wife $147,535 in lump-sum spousal support, which the judge gave him 30 days to pay or face a further judgment for that amount and support deduction order.

A Significant Remedy

“It is a very significant remedy,” says Stangarone, a partner with MacDonald & Partners LLP , who acted for the successful wife along with firm associate Stephen Kirby . “This has been a horrific and tragic situation for our client, but the judge’s decision goes a long way towards rectifying that.”

“In effect, it gives her a clean break, because without the vesting order, she could have been attempting to take enforcement measures for years,” he adds.

The couple separated in 2014 after 19 years of marriage.

Blaming financial and personal difficulties for multiple breaches of a temporary support order made in 2014, the husband claimed his former spouse should become immediately self-sufficient and that their house should be sold – allowing him to realize the value of his share.

He also claimed that his income had dropped to around $50,000 per year, with his ability to earn any more impaired by complications resulting from cancer in his muscles.

Meanwhile, the wife claimed that her former husband had understated his income from a design business co-owned with his mother, and raised questions about payments made between the two in the dying days of the marriage.

According to Stangarone, the judge’s findings on the credibility of the parties were critical to the result. Concluding that the wife’s testimony was “significantly more reliable and credible” than her former husband’s, the judge went on to add that he was “not a believable witness.”

Destroyed Evidence

One particular exchange highlighted in the decision dealt with the husband’s explanation for the lack of records showing cash he received from the business. Under cross-examination, he admitted to disposing of the phone on which he had tallied up all his cash income after the litigation had begun, despite undertaking through his lawyer not to destroy any evidence.

“When that was brought to his attention, he then said that his phone had crashed and the contents of the hard drive was lost. Although he testified that he took it to Apple to unsuccessfully retrieve his data, he had nothing proving that,” the judge wrote. “It was similar to a child telling his teacher that the dog had eaten his homework and as believable.”

Ultimately, the court imputed the husband’s annual income at $142,000, ordering him to pay just over $3,000 per month in child support, as well as $335,000 to his ex-wife in lump sum spousal support.

When it came to the equalization of assets, the husband was ordered to pay $340,000 after the judge found he had made fraudulent conveyances to his mother with the intent of defeating his wife’s matrimonial claims.

The Badges of Fraud

The trial judge reviewed the “badges of fraud” that have been long standing elements of English Law. These “badges” can raise an inference of intent resulting in a shift of the onus on the conveying party to explain himself. At para. 52 of the decision of Indcondo Building Corp. v Sloan 2014 ONSC 4018, they are outlined as follows:

The badges of fraud derive from Twyne's Case, Re (1601), 76 E.R. 809 (Eng. K.B.). As interpreted by modern courts, the badges of fraud include:

(a) the donor continued in possession and continued to use the property as his own;

(b) the transaction was secret;

(d) the transfer documents contained false statements as to consideration;

(e) the consideration is grossly inadequate;

(f) there is unusual haste in making the transfer;

(g) some benefit is retained under the settlement by the settlor;

(h) embarking on a hazardous venture; and

(i) a close relationship exists between parties to the conveyance.

There were two transactions called into question in this case, as noted by the trial judge. The first was the payment of $149,000 by the husband to his mother. He claimed that this was to repay her for cash that he had taken out of the business over the six previous years which he owed her. The second was the repayment of a $200,000 mortgage registered against the matrimonial home in favour of his mother in 1995.

Stangarone says the opaque nature of the man’s financial situation left his client with some detective work to do with the assistance of an expert in order to show that money transferred from the former husband to his own mother during the marriage were fraudulent conveyances, and that the funds should be treated as assets included in his net family property at the time of the separation.

The mother acknowledged receiving around $350,000 from her son in the last few years of the marriage and admitted under cross-examination that the same money may have been used to pay for a house bought in her daughter’s name in 2014. Following the daughter’s death that same year, the home was transferred to the mother.

Secret Transfers

The trial judge was satisfied that a series of transfers worth $149,000 from joint accounts shared by the former spouses to the husband’s mother bore a number of the badges of fraud:

“…A number of the “badges” are present in respect of the payment of the $149,000 to his mother. These transactions were kept secret from Ms. I and were set up to conceal the true nature of them. Mr. I knew that there were “threatened legal proceedings” as he knew that the marriage was breaking down, and that he needed to protect these assets from Ms. I’s equalization and support claims. The transfer documents were patently false and intended to deceive. And the consideration is “grossly inadequate”; Mr. I said that he owed his mother $114,000 which was the cash that he had removed from the business over the previous six years; however, he acknowledged in his submissions that he had in fact over paid his business partner by $57,000 as he only owed his mother half of the cash payments that he had received. This leaves $92,000 in unexplained transfers to his mother; Mr. I says that he repaid the mortgage from a joint business account.

Finally, one of the badges of fraud is that the settlor of the funds retains the use or benefit of the monies after the transfer. In this case, it is probable that these funds received by his mother were used in the purchase of the home on 2189 Old Rutherford Road in Maple. That home has been placed in the name of the motherwho appears to be the repository of most of Mr. I’s assets.”

Suspicious Transactions

“[He] has not explained the transactions which were suspicious in both the method by which they were effected, and as to the purpose of the transfers. Therefore, I find that the transfer of these funds was a fraudulent conveyance,” he concluded.

In addition, the trial judge found that the $200,000 repayment of a mortgage held by the mother on the couple’s home was another fraudulent conveyance, noting that the 10-year limitation period on the loan had already passed and that no payment installments or demands had ever been made between 1995, when the property was purchase, and 2012, when the husband repaid the loan in full.

“If there was ever an intent to repay the loan, that intent had long expired by the time the loan was paid by [the husband] in March, 2012. This was, by the time it was repaid, an unenforceable debt, and [he] failed to adequately explain how it was repaid or why it was repaid as the marriage broke down, and at the same time he was diverting funds to transfer $149,000 to his mother,” the judge wrote.

The costs order in the case followed a similar pattern to the trial judgment, delivering another boost to the wife.

Finding that the wife was entirely successful at trial, the judge concluded that the husband’s bad faith conduct required him to assess costs on a full recovery basis. Ultimately, the husband was ordered to pay the wife costs of $250,000, inclusive of disbursements and HST, collectable as support.

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Decision Throws Light on Mechanics of Parallel Parenting

Sat, 03 Jul 2021 20:34:44 GMT

Gary Joseph | Nov 2020

Parallel parenting has been recognized as a useful tool in high conflict cases.

Decision making for the child(ren), often the core of the dispute, is parsed between parents. These arrangements can reduce parenting conflict and calm the seas of parental engagements. Courts have been increasingly receptive to such accommodations.

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Better Ways of Giving Self-Reps Access to Justice

Sat, 03 Jul 2021 20:29:58 GMT

Gary Joseph | Nov 2020

I have written many (too many) times about my concerns with the proliferation of self-represented litigants and am gratified that much of the data gathered supports some of my previously expressed views.

Most upsetting to me, is our profession's continual silence on the value we bring to the process...

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When Hague Convention Intersects with Domestic Law

Sat, 03 Jul 2021 20:26:50 GMT

Michael Stangarone, Kristy Maurina, Alice Parama | Oct 2020

When a return application is brought in Ontario following a child's abduction, the court must determine whether to proceed under the Hague Convention of Civil Aspects of International Child Abduction (Hague Convention) or s. 40 of the Children's Law Reform Act.

Although similar in many respects, the two applications have fundamental differences...

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Disclosure in family court and the need for co-counsel

Sat, 03 Jul 2021 20:03:22 GMT

Gary Joseph | Oct 2020

Family law matters have become increasingly complex. Managing a family law trial now involves the usual presentation of evidence but the extent of documentary evidence necessary has greatly expanded with the focus on disclosure as articulated in a number of decisions of the Court of Appeal.

Now layer on the complexities of a COVID-19 virtual trial and one is left to wonder how all of this can be handled by one counsel for each party.

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COVID, opportunity and future of family law

Sat, 03 Jul 2021 20:01:11 GMT

Gary Joseph | Oct 2020

I have been fortunate to professionally grow up in an era of family law giants. I have negotiated with and against, litigated with and against and learned from the likes of Malcolm Kronby, Alan Poole, Harold Berry, Phil Epstein and many other of the now gone greats.

Now the era of these distinguished lawyers and justices is ending or has already ended. Family law and the practice thereof is changing and facing new challenges.

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COVID and the race to the negotiating table

Sat, 03 Jul 2021 19:58:08 GMT

Gary Joseph | Sep 2020

COVID-19 has spawned an enormous wave of child-related motions.

The decision of Justice Heather McGee in Clemente v. O'Brien 2020 ONSC 3287 appears initially as just one more.

While not quite a COVID-motivated motion it becomes one as it caused the court to consider and opine (most elegantly in my humble view) on the various test(s) necessary to get before the court on a motion given the restrictions imposed on family law litigants by the shutdown.

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IAFL Welcomes Michael Stangarone

Sat, 03 Jul 2021 19:55:36 GMT

Michaele Stangarone | Sep 2020

MacDonald & Partners LLP is pleased to announce Michael Stangarone has been welcomed into the International Academy of Family Lawyers.

IAFL is a worldwide association of practising lawyers who are recognized by their peers as the most experienced and skilled family law specialists.

View Michael's IAFL profile here - https://mpllp.com/iafl-michael-stangarone.html

Reflections on Costs Awards and an Appeal of That Issue

Sat, 03 Jul 2021 19:52:34 GMT

Gary Joseph | Sep 2020

The Ontario Court of Appeal recently dealt with an appeal of a costs award from the trial decision of Justice Sharon Shore in Climans v. Latner 202 ONCA 554.

Both the trial decision and the appellate court ruling are fascinating from a legal and factual basis.

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Unexpected child support consequence of COVID-19

Sat, 03 Jul 2021 19:50:03 GMT

Gary Joseph | Sep 2020

Courts generally reduce the amount of child support during the academic year where the child is not living at home, in accordance with s. 3(2)(b) of the Child Support Guidelines (CSG).

Where a child is residing in another residence for the bulk of the year, it is inappropriate to apply child support tables that are not designed with that living arrangement in mind. Furthermore, the tables assume that the recipient spouse is providing physical shelter and amenities to the child under his/her roof.

When the child is away at college or university, this assumption no longer applies.

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Best Lawyers in Canada - Recognition

Sat, 03 Jul 2021 19:48:13 GMT

Gary Joseph, Geoffrey Wells, Michael Stangarone, William Abbott | Sep 2020

MacDonald & Partners LLP is pleased to announce that Gary Joseph, William Abbott, Geoffrey Wells and Michael Stangarone have been recognized as leaders in their field in the latest edition of The Best Lawyers in Canada ^® for their work in Family Law.

To School or Not To School

Sat, 03 Jul 2021 19:45:10 GMT

Gary Joseph | Aug 2020

Already backed up and overburdened, now our courts and family law judges are faced with more COVID-19 driven litigation. One parent wants the child to return to school while the other parent opposes and wishes to continue with online learning.

Decisions that should be made jointly by parents alone or at the very least by the parents with third party assistance are being thrown before judges for adjudication...

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Making joint experts mandatory is long overdue

Sat, 03 Jul 2021 19:41:49 GMT

Gary Joseph | Aug 2020

The Family Law Act in British Columbia and the Family Law Rules thereunder have implemented a mandatory requirement for the use of joint experts on financial issues in family cases. The rule is stated in mandatory terms.

This is a change that is long overdue and one that should be the norm in family law matters across the country.

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Address All Potential Issues When Using Experts

Sat, 03 Jul 2021 19:39:14 GMT

Gary Joseph | Aug 2020

Recent amendments to the Family Law Rules have now formally introduced the jointly retained expert to family law matters. A joint litigation expert is defined as a litigation expert engaged to provide expert evidence for two or more parties.

Rule 20.2 (10) permits the court to make an order “engaging a joint litigation expert for two or more parties.”

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The Trouble With Invisible Litigants

Sat, 03 Jul 2021 19:35:08 GMT

Gary Joseph | Aug 2020

Most of the family law bar is now familiar with the Court of Appeal decision in Leitch v. Novac 2020 ONCA 257.

Once released, I wrote and commented on Justice C. William Hourigan's "granular" dissection of the lower court ruling, his powerful comments on non-disclosure and his condemnation of "invisible litigants" said to be...

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After COVID-19 We Can Never Go Back

Sat, 03 Jul 2021 19:32:09 GMT

Gary Joseph | July 2020

The pandemic has most abruptly changed the legal landscape and the practice of family law.

The speed within which change has occurred is breathtaking. I am often a severe critic of the court system, but I take this opportunity to extend sincere appreciation to those directing the change and most definitely to the court staff who are at the forefront of the recent innovations.

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Mourning the Loss of Oral Advocacy

Sat, 03 Jul 2021 19:29:12 GMT

Gary Joseph | June 2020

Recently many lawyers have been reflecting upon the place and future of oral advocacy in our changing world.

Even before the COVID-19 crisis hit we have seen a gradual erosion of the time-honoured tradition of oral advocacy supplementing the written world.

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The Matrimonial Home & the Right of First Refusal

Sat, 03 Jul 2021 19:25:58 GMT

Gary Joseph | June 2020

Once again, the issue of the disposition of a matrimonial home has found its way to the Ontario Court of Appeal in the case of Barry v. Barry 2020 ONCA 321. I find this surprising in that the same court in 1992 clearly articulated its view on a very similar if not identical issue in Martin v. Martin (1992), 8 O.R. (3d) 41.

In Barry, following a four day trial before the Superior Court of Justice, the trial Judge granted to the Respondent the right to purchase the matrimonial home within 30 days from the release of the decision after obtaining a fair market value assessment. The Applicant wife wanted the home sold and the proceeds divided. The wife appealed arguing that the trial Judge had made a reviewable error of law for which the standard of review is correctness and the appeal court agreed.

Citing Martin v. Martin, the appeal court noted that a right of first refusal is a substantive right that has economic value. “It distorts the market for the sale of the matrimonial home be eliminating the need to compete against any other prospective purchaser, thus reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case.” The Respondent, if he wanted the home, was ordered to compete with other potential purchasers.

An interesting side note to this case is an argument that the Respondent made challenging the jurisdiction of the Ontario Court of Appeal to hear the appeal. He took the position that the appeal lay to the Divisional Court. Perhaps he was relying upon section 7 of the Partition Act which does indeed provide that appeals from that Act lie to the Divisional Court. The Court of Appeal rejected this submission citing section 6(1)(b) of the Courts of Justice Act allowing appeals to the Ontario Court of Appeal from a final order of the Judge of the Superior Court. In footnote the court notes that Part I of the Family Law Act does not have an appeal provision captured by the deeming provisions of section 21.9.1 of the Courts of Justice Act which directs certain final appeals from the decision of the Family Court to the Divisional Court. Does everybody understand that?? My goodness isn’t it time that we simplified the appeal rules and made them more user friendly? Also, and by the way, when will we have a province wide “unified” Family Court?

Haven’t we learned from the Covid crisis that we need to speak up forcefully to make changes to our court system so that it is immediately more consumer friendly? Making the appeal process more friendly would start with making the rules for appeals easier to understand.

Reconciliation and the Interaction between Standard Form Agreements and Common Law

Sat, 03 Jul 2021 19:10:25 GMT

Michael Stangarone | June 2020

Separating spouses and their counsel must take care when relying on standard reconciliation clauses in separation agreements as highlighted by the Court of Appeal for Ontario in the recent decision...

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No Going Back: Technology & Court Process

Sat, 03 Jul 2021 19:05:44 GMT

Gary Joseph | June 2020

The COVID-19 shutdown of the court system was initially viewed as a temporary measure to address legitimate health concerns.

Most lawyers expected a quick return to "normal" once the pandemic passed.

Two things have now become quite apparent;

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COVID-19 no excuse to rip up existing custody arrangements

Sat, 03 Jul 2021 19:03:22 GMT

Gary Joseph | June 2020

Parents should not view the COVID-19 pandemic as an opportunity to change the rules of the game when it comes agreements or court orders regarding custody and access of their children.

While regular operations of the Ontario Superior Court of Justice remain suspended until further notice, the same does not apply to existing orders concerning parenting time, as the recent judgment in J. v. J. shows.

The judge in the case ordered an immediate resumption of parenting time for my client – the successful father – in accordance with two previous temporary orders, after the mother unilaterally cut off his in-person contact over concerns about the risks associated with COVID-19.

Background

The two children of the former couple in J. v. J. – aged six and five – first became the subject of a temporary order in January 2019, when the father was granted parenting time on consent for Tuesday and Thursday each week, as well as on alternate weekends.

A further temporary order made on consent in August 2019 slightly expanded his parenting time, and also confirmed the father’s full responsibility for decision-making regarding the children’s health and medical issues. The mother took final authority over education decisions under the same order.

However, soon after the pandemic struck, the mother barred the father from in-person contact with the children, and insisted he complete his parenting time via Skype.

In response to the father’s motion for a resumption of in-person contact with the children, police enforcement and make-up parenting time, the mother asked the court to endorse her suspension of his access, to be replaced by “liberal and generous” access via Skype.

Urgency

This case is typical of many cases heard since the court’s suspension of operations in mid-March, when hearings were confined to urgent family law matters only.

According to our own survey of reported decisions since the pandemic struck, the focus has shifted significantly towards parenting issues – often focused on concerns about at least one party’s compliance with social distancing protocols. By contrast, only a tiny minority of decisions have any financial aspect to them.

Noting that the father had not seen his children in a month by the time the motion was heard, the judge in J. v. J. wrote that the mother’s “self-help remedy” could not be condoned.

“It is not known at this time when this pandemic will end or when the Superior Court of Justice will be able to resume its regular operations,” she wrote. “The children’s well-being includes in-person contact with their father as the existing orders for access have determined that this is in their best interests.”

However, only the matter of the resumption of in-person parenting time was urgent, the judge added, declining to rule on the issues of police enforcement and make-up parenting time.

In-Person Parenting Time

Although the previous orders were made on consent of both parties following negotiations, the judge in J. v. J. found that it would have made no difference had they arisen following contested motions, given there was no question over their validity.

“During this unprecedented pandemic, there is a presumption that orders for parenting time will be followed unless it can be demonstrated that continuing to follow court orders would pose a real risk to the children’s safety and well-being,” she wrote, concluding that the mother had failed to prove any such risk to the children.

“Therefore, the Applicant’s parenting time shall immediately resume,” the judge added.

Rejecting allegations of inadequate safety precautions, she found both parents were being responsible in the face of the pandemic and practicing social distancing.

In addition, the use of Skype to replace the father’s in-person contact raised issues, including difficulty maintaining the attention of young children and the necessary involvement of the mother, according to the judge.

“Pursuant [to the previous orders], the Applicant’s parenting time with the children is unsupervised. However, by the nature of Skype, it is inevitable that the Respondent will be monitoring,” she wrote.

As unusual and trying as these times are, children seeing their parents continues to be a very important fundamental of family law. As this case shows, parents should avoid allowing COVID-19 to interfere with their custody and access arrangements, unless there are valid safety or other concerns that would affect their children’s best interests.

Just one kick at the can to challenge urgency of matters during COVID-19

Sat, 03 Jul 2021 18:59:27 GMT

Gary Joseph | June 2020

Family law litigants can not challenge the urgency of a matter once a hearing has been scheduled under the court’s COVID-19 measures, according to a recent Ontario Superior Court judgment.

Since its temporary suspension of operations in mid-March, the court is only open for hearings of urgent family law matters. As a result, triage judges are tasked with determining urgency and scheduling hearings for those cases that meet the threshold.

Still, that has not stopped parties from seeking a second kick at the urgency can when matters come before the presiding judge. However, the case of C. v. M., in which I acted for the successful father, confirms that the triage judge’s word on scheduling is final.

The respondent mother in the case asked the presiding judge to find that the parenting-time motion brought by the young girl’s father was not urgent and should not have been scheduled, but after a review of the court’s approach in civil matters, the judge declined to revisit the issue.

Background

The parties separated immediately before the court’s lockdown in mid-March after almost six years of marriage, when the father left the matrimonial home.

He applied for an order granting him parenting time with the couple’s four-year-old daughter on a week-on, week-off basis, allowing the child to split her time between their homes.

Ahead of the motion’s hearing, the mother denied the father in-person meetings with his daughter, replacing visits with frequent video calls. She cited concerns about contracting COVID-19, in spite of his insistence that he was complying with all protocols regarding the virus.

The mother’s cross-motion proposed parenting time for the father on alternate weekends, but only after a 14-day self-isolation period.

Urgency

On April 7, a triage judge scheduled the father’s motion for a hearing on April 14, concluding after a review of the circumstances: “On a preliminary basis, I am satisfied that this matter is urgent.”

When the case came before the presiding judge, the mother asked him to reconsider whether the motion should be heard at all, given the “preliminary” nature of the triage judge’s finding of urgency.

However, the presiding judge agreed with our submission that family court judges should adopt the same approach to urgency taken by those hearing civil proceedings during the pandemic, outlined by Justice Frederick Myers in the case of Wang v. 2426483 Ontario Limited.

Identifying scheduling as an administrative function of the court and urgency as an issue on which counsel may be asked to make submissions, Justice Myers emphasized that it is “not a legal determination.”

“Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court’s administrative process is not part of the lis or the dispute between the parties,” Myers concluded.

The judge in our case agreed that these views were equally applicable in family law proceedings:

“This Court’s and the parties’ limited resources should be used to address the merits of the substantive relief sought on scheduled motion rather than to re-consider the administrative decision to schedule the hearing,” he wrote. “Accordingly, I decline to re-visit whether the Applicant’s motion should have been scheduled for a hearing.”

This is an important case for family law counsel, and in my view, a welcome one. Former spouses in contentious family law matters already have enough to argue over without allowing proceedings to become bogged down in discussions over urgency or other administrative issues that have already been decided. Everyone benefits from the cost savings associated with avoiding a second kick at the can.

Parenting Time

One of the other messages to emerges from this decision is that video conferences with a child are no substitute for in-person parenting time, even during a pandemic – so long as there are no genuine safety concerns regarding face-to-face meetings.

The judge was persuaded to dispense with the normal requirement for a case conference in part because of the mother’s refusal to allow my client to see his daughter in person.

Dismissing the mother’s COVID-19 concerns as “hollow” in light of her frequent visits with her own children, the judge accepted our proposal for a week-on, week-off parenting arrangement.

“[The girl’s] best interests are served by having two parents fully participating in her life and development. Accordingly, I accept the Applicant’s request for a shared and equal parenting plan,” he concluded, adding that the non-custodial parent may video conference with the child twice per week. “Both parents should put [the child’s] interests first by supporting her during this transitional period in order to make it as smooth as possible.”

Tailor reconciliation clauses to ensure parties’ intentions are reflected

Sat, 03 Jul 2021 18:54:44 GMT

Michael Stangarone | June 2020

Splitting spouses must take care when using standard reconciliation clauses in separation agreements, says Toronto family lawyer Michael Stangarone .

In the recent case of Miaskowski v. MacIntyre , the Court of Appeal for Ontario considered a twice-separated couple’s dispute regarding the wife’s claim over the husband’s Canada Post pension.

The unanimous three-judge panel sided with the wife, granting her an equalization payment based on the value of the pension from the start of their marriage, rather than from the date of their reconciliation some nine years later.

In doing so, the appeal court overturned the ruling of the trial judge, whose decision, the panel found, failed to give effect to a clause voiding the provisions of the separation agreement once the parties had reconciled for more than 90 days.

Stangarone, a partner with MacDonald & Partners LLP – who acted for the successful wife on the appeal along with firm associate Stephen Kirby – notes that the reconciliation clause at the heart of the case has been in common usage for several decades.

Reconciliation Clause

“The biggest takeaway here is you’ve got to be really careful when dealing with these standard clauses to ensure that they reflect the intent of the those involved,” he says. “If the parties have ideas about what they want to occur with respect to specifically contemplated payments on reconciliation, and whether certain specific property should be excluded from the net family property calculation, then they should be explicitly set out in the separation agreement.”

The couple originally split in 1999, less than two years after their 1997 marriage, before entering into a separation agreement in 2002 that included a release of the wife’s interest in her husband’s pension.

The reconciliation clause, which kicked in when the parties got back together in 2006, contained an exception leaving in place “any payment, conveyance or act” done under the agreement.

Following their final split in 2014, the couple’s legal dispute boiled down to the wife’s interest in the husband’s pension and the size of the payment she was due under the equalization of net family property.

To simplify matters, they asked the judge to pick between two commencement dates for the valuation of the pension: the first from the date of their reconciliation in 2006, and the second from the date of their marriage in 1997, which would have the effect of almost doubling the size of the equalization payment to the wife, from around $139,000 to $272,000.

Sydor v. Sydor

Relying on the Court of Appeal’s landmark 2003 judgment in Sydor v. Sydor , the trial judge found that the “specific release” of the wife’s pension rights contained in the separation agreement survived reconciliation, and that the exception contained in the reconciliation clause applied to an equalization payment made under the agreement.

However, Appeal Court Justice Kathryn Feldman, writing for the panel, found that the trial judge made two key errors in his approach:

“The first was that he misapprehended the evidence regarding whether there was any ‘payment’ for the value of the pension to carry out the terms of the separation agreement. In fact, there was no such payment and therefore the exception to the voiding provision did not apply,” she wrote, noting that no portion of the original equalization payment related directly to the husband’s pension, which was too small at the time of the 1999 separation to justify a formal valuation.

According to Justice Feldman’s judgment, the second error was the trial judge’s failure to give effect “to the express term of the reconciliation clause that provides that the separation agreement becomes void if the parties reconcile for more than 90 days.”

Unlike in Sydor, where the separation agreement at issue contained no mention of reconciliation, the parties in this case had provided for what would happen in the event they resumed their marriage.

“The language of the voiding clause in the separation agreement in this appeal clearly demonstrates the intent on reconciliation to return the parties to the position they were in prior to separation,” Justice Feldman concluded. “The bargain they made on separation, whereby they released each other from future rights and obligations, is set aside and becomes void. The parties are meant to regain all the rights they had as spouses that were bargained away in the separation agreement.”

Separation Agreement

While labelled in the separation agreement as a “specific release,” the wife’s waiving of the pension claim was in fact part of the “general release of rights given as part of the overall bargain between the parties,” Feldman wrote, declaring the release void.

Acknowledging the possibility for unfairness under the terms of a reconciliation clause, Justice Feldman went on to write that such situations arise exceptionally and should be dealt with on a case-by-case basis.

“There is no shortage of tools at the court’s disposal to give effect to the spouses’ intentions and address consequences that were clearly unintended,” she added. “Importantly, there is no unfairness in this case. The husband’s position is that the wife should not be entitled to share in the value of his Canada Post pension for the roughly seven-year period during which they were living separate and apart and with other spouses.”

“However, the alleged unfairness does not arise from any transfer completed under the agreement. Instead, it arises from the operation of the FLA [Ontario’s Family Law Act], which entitles married spouses to share in net family property so long as they remain legally married,” Justice Feldman concluded.

Ultimately, the panel allowed the appeal, finding that “no transfer or conveyance was made respecting any entitlement by the appellant to the value of the respondent’s Canada Post pension, the exception to the voiding clause in the separation agreement does not apply, and the release of the appellant’s right to share in the pension is void.”

“As a result, of the two choices proposed by the parties, the appellant is entitled to receive a share of the respondent’s pension from the date of marriage to the date of the second separation,” the decision reads.

Onus unchanged during pandemic in ‘exclusive possession’ cases

Sat, 03 Jul 2021 18:51:19 GMT

Michael Stangarone | May 2020

COVID-19 may be playing havoc with the court system, but it has not changed the burden of proof in disputes over exclusive possession of the matrimonial home, says Toronto family lawyer Michael Stangarone.

In the recent case of C. v. C. , a mother of two children applied for exclusive possession of the home she once shared with her husband, arguing that it was not safe for her to live at her elderly parents’ house during the current pandemic.

But Ontario Superior Court Justice Robert Charney dismissed her motion, finding that she had failed to show that continued co-habitation in the matrimonial home was either impractical or that it would threaten the children’s well being.

In fact, after reviewing the evidence, the judge concluded that the mother was “better able to reside elsewhere” than the father during the pandemic, due to his parents’ ill health and advanced age.

Exclusive Possession during COVID-19

“The onus is on the party seeking exclusive possession, and this case is important for setting out the type of evidence that you need to prove your case,” says Stangarone, a partner with MacDonald & Partners LLP , who acted for the successful father. “You have to lead credible evidence that alternate living arrangements increase the risk of COVID-19, whether it’s because someone is failing to comply with government protocols, or there’s a family member with a health issue that makes them vulnerable.”

The parties separated in 2019 after 7 years of marriage, but lived together in the matrimonial home for a period post-separation. However, when the father refused the mother’s request that he depart, she moved with the children to her own parents’ home, leaving her husband alone in the matrimonial home.

In addition to an order for exclusive possession of the matrimonial home, the mother’s motion also asked the judge to grant her exclusive care of the children at the home for 14 days.

Following that initial period, her motion requested a temporary order that would impose a nesting arrangement, committing each parent to leave the matrimonial home – residing instead with their respective parents – during the other’s parenting time. Under the mother’s suggested arrangement, the father’s parenting time would consist of a 29-hour period in the middle of each week, plus alternate weekends.

Courthouse Suspension of Operations

A case conference was originally set for March 17, but did not occur as planned, since that date turned out to be the very first day of the court’s suspension of operations. However, the motion was heard in writing after the judge found it met the threshold for urgency.

According to Justice Charney’s ruling, the mother claimed the high level of conflict between the parties made continued co-habitation impossible. In addition, she argued that it was unsafe for her and the children to live with her parents during the pandemic because they are both over 55 years. In particular, her father had started experiencing “respiratory issues,” the mother claimed in an affidavit that also accused her husband of flouting COVID-19 protocols.

But the judge took issue with the mother’s evidence, noting that her affidavits contained “hearsay and speculation” about the father’s behaviour, while embellishing the risks posed by the current pandemic to her own parents and minimizing those to her husband’s parents.

The judge rejected her request to deny the father access to the children for 14 days, concluding that she had provided “no admissible evidence” to support her claims about his alleged COVID-19 protocol violations.

Unsuitable Nesting Arrangement

Justice Charney wrote that the current pandemic rendered a nesting arrangement unsuitable because of the father’s inability to live with his parents.

“Balancing the suitable alternate accommodations available to each party, the evidence is clear that, at least during the COVID-19 pandemic, [the mother] is better able to reside elsewhere than [the father],” the judge added, dismissing her motion for exclusive possession of the matrimonial home.

“It was for the mother to prove her case, but the judge found she had better alternate accommodations,” Stangarone says.

He says the decision is also important for emphasizing the importance of parenting time during the pandemic emergency.

“The question of parenting time, although important, is not, at this point, urgent. This is not, however, an invitation to deny or suspend [the father’s] parenting time with the children. Continued parenting time with both parents is in the children’s best interest,” Justice Charney wrote, requiring both parents to submit “very specific and realistic time-sharing proposals” accounting for all COVID-19 considerations, and guided by the maximum contact principle.

“Parents should be aware that their conduct will be critically scrutinized by the court,” the judge added.

Non-Hague countries subject to different test for return of abducted children

Sat, 03 Jul 2021 18:48:38 GMT

Michael Stangarone | May 2020

Courts are right to distinguish between Hague and non-Hague countries when deciding whether to order the return of abducted children, says Toronto family lawyer Michael Stangarone .

In G. v. R., Ontario’s Court of Appeal overturned a lower court decision ordering a mother to return her six-year-old daughter to Dubai in the United Arab Emirates, where her father lives.

The unanimous three-judge panel found the Superior Court judge erred in treating the application under s. 40 of the Children’s Law Reform Act (CLRA) as if it had been made under the Hague Convention.

Canada is a signatory to the Hague Convention, an international agreement, which provides a mechanism for the return of abducted children to their country of habitual residence – subject to certain defined exceptions – but the UAE has never signed on.

“This case is important because it makes clear that the test is different for non-Hague countries,” says Stangarone, a partner with MacDonald & Partners LLP , who acted for the successful mother at the appeal court.

Non-Hague Signatories

While Hague principles may be used in some cases involving non-Hague signatories, Stangarone – a frequent litigator of international child abduction matters – says it makes sense to subject them to different standards.

“Signatories are presumed to be capable of determining custody and access issues in the best interests of the child, but you don’t have that assurance when you’re dealing with a non-Hague country,” he explains.

According to the ruling, the Lebanese-Canadian mother married the child’s Saudi-born father in 2012 in London, where their daughter was born a year later.

The parties separated soon after, engaging in extensive legal proceedings before a consent custody and access order was made by a U.K. family court in 2015, preventing either from removing the child from that jurisdiction without the written consent of the other or an order from a judge.

In 2018, the mother claimed that a planned two-week visit with her daughter to the father’s new home in Dubai turned into a lengthier stay because he confiscated both of their passports on arrival, leaving them trapped in the UAE for 14 months – allegations denied by the father.

Both sides agreed that in May 2019, the mother fled with the child to Lebanon, before travelling on to Toronto, where her own mother and other family live.

The father then applied to an Ontario court under s. 40 of the CLRA for the child’s return to Dubai, which he claimed had become her habitual residence.

After siding with the father on the issue of the child’s habitual residence, the application judge ordered her return to Dubai, concluding that the move would not cause her “serious harm.”

Hague Convention Framework

However, the appeal panel found the judge erred in applying a Hague Convention framework to her decision-making.

“I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application,” wrote Justice Michal Fairburn for the appeal court. “While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applications. The court’s ability to exercise a broader range of powers under s. 40 is particularly important.”

In this case, the appeal court found the application judge should have been focused on the issue of the child’s wrongful removal to Ontario, rather than the question of her habitual residence.

This in turn would have forced consideration of the 2015 U.K. custody order, which the mother claimed was still valid.

Consent Custody Order

“In all of the circumstances, the application judge should have given substantial weight to the Consent Custody Order when arriving at an appropriate disposition. Given the highly disparate accounts of the parties, and the clear need to resolve those accounts before ordering the child’s return to Dubai, the matter should have been returned to the Central Family Court in London, U.K. for determination,” the appeal court ruling concluded.

In the event the U.K. court declines jurisdiction, the panel ruled that the father would be able to seek a rehearing of his s. 40 application in Ontario. But in the meantime, the child was ordered to remain in the Greater Toronto Area.

Following the ruling from the province’s top court, the mother told the dramatic story of her escape from Dubai to the Toronto Sun , explaining how she found her daughter’s confiscated passport while her husband was out of the country for a family funeral.

“She loves Canada,” she told the newspaper. “It’s cold and it’s snowing in April but she says she doesn’t want to be in London or Dubai. She just wants to stay here.”

Urgency, COVID-19 and Family Law

Sat, 03 Jul 2021 18:45:09 GMT

Gary Joseph | May 2020

Gary S. Joseph, LL.M., C.S., Managing Partner, MacDonald & Partners LLP., Family Law Practitioners

Access to our courts is now largely governed by the test of “urgency”. There is a multitude of cases addressing what our Judges view as urgent. For the most part, but not all, cases have focused on child-related issues. However, in the civil litigation world, the courts have also tackled the issue. In Wang v. 2426483 Ontario Limited, Justice Myers cautioned that determining whether a matter is urgent is part of the court’s administrative function, and once the court has decided to schedule a matter for a hearing, “there is no basis for further submissions to be delivered on the issue of urgency.” Justice Myers specifically expressed the following views which the family law bar would be well advised to carefully note:

[11] The Notice to the Profession provides guidelines for those who nevertheless need to access the courts while they are not in full operation. People needed to be told the kinds of matters that could be accommodated, the types of materials that they should file, and the email addresses to contact to reach court personnel. This is all important information for the purposes of explaining to the public and the legal profession the processes put in place to maintain operations by the extraordinary efforts of the Superior Court of Justice.

[12] However, none of this affects the court's jurisdiction or the applicable rules of law. All court proceedings continue although only a very few are being scheduled for hearing at this time. Scheduling is an administrative function of the court. Normally, in the civil division in Toronto, hearings are scheduled by administrators over the telephone or by email and by judges in Civil Practice Court. Many factors go into scheduling that is not the subject of discussion with or among the litigants. The availability of judges for the type of hearing proposed, the availability of courtrooms, of staff, and numerous other administrative inputs may be brought to bear.

[13] Counsel may be invited to make submissions on the timing of a proposed hearing including whether there is a degree of urgency. Or not.

[14] But it is not a legal determination. There is no need or call for detailed submissions. There is no need for submissions on the merits of the proposed proceeding before and certainly not after the scheduling determination has been made.

[15] The court has very limited access to staff with full computer capabilities at present. Much back and forth about urgency, the merits, and parsing of the terms of the Notice of Profession are literally clogging up the Motion Coordinator's email. This is not required. In the main it is not helpful. And it must stop.

[16] The court has jurisdiction to schedule and hear a proceeding that is brought before it. If a matter appears to be one that should be scheduled, a case conference is frequently convened. In that way, the presiding judge can quickly contact the parties and determine an appropriate schedule for the exchange of materials and hearing, if any.

[17] Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited. Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court's administrative process is not part of the lis or the dispute between the parties.

[18] It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle. Once a hearing is scheduled by the triage judge(s) the Notice to the Profession is spent and the presiding judge will deal with the parties in the manner she or he determines is appropriate. [emphasis added] Wang v 2426483 Ontario Limited, 2020 ONSC 2040 (CanLII), http://canlii.ca/t/j69r8 at paras. 11-18

These wise words have been adopted in the family law context. In Chahine v. Martins, Justice Faieta determined that the views expressed by Justice Myers in Wang, are equally applicable in a family law proceeding. Justice Faieta declined to revisit the issue of whether the Applicant father’s motion for parenting time should have been scheduled for a hearing, stating, “This Court’s and the parties’ limited resources should be used to address the merits of the substantive relief sought on schedule motion rather than to re-consider the administrative decision to schedule the hearing. This approach is consistent with the primary objective of the Family Law Rules expressed in Rules 2(2)-(4).” Chahine v Martins, 2020 ONSC 1825, at para. 25.

Let’s stop wasting our time, the client’s money, and the court’s resources. Once a determination of urgency has been made, get on with the substantive determination of the matter.

Advocacy: What works and what doesn't

Sat, 03 Jul 2021 18:42:16 GMT

Gary Joseph | May 2020

Much has been written about effective advocacy.

There are courses designed to assist lawyers in being or becoming persuasive both orally and in writing.

One of the most prized skills for both barrister and solicitor is the ability...

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Staggering Cost Award: How to Lose Big

Sat, 03 Jul 2021 18:36:47 GMT

Gary Joseph | May 2020

The Family Law Rules require costs to be determined promptly after each step in a case.

The rationale for this rule is obvious but perhaps twofold; the judge hearing the "step" is best able to assess costs and the court's assessment of costs can and should illuminate for the parties the necessity of reasonable litigation conduct...

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The Open Court Concept and Family Law

Sat, 03 Jul 2021 18:29:09 GMT

Gary Joseph | May 2020

Century old common law principles describe the importance of an open and accessible court system.

Democracy flourishes when you have a court that is open to public discussion, participation and critical comment. The open court principle...

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OCA provides roadmap to new test in Hague Convention cases

Sat, 03 Jul 2021 18:25:02 GMT

Michael Stangarone | Apr 2020

A recent Ontario Court of Appeal decision provides guidance for counsel dealing with cases of wrongful removal or retention of children under the Hague Convention, says Toronto family lawyer Michael Stangarone , who argued one of the first cases interpreting the test.

“It’s a well-written decision that helps explain how to determine habitual residence using the hybrid approach set out by the Supreme Court of Canada (SCC) in 2018,” says Stangarone, a partner with MacDonald & Partners LLP .”

“The SCC found that there’s no one factor that determines habitual residence — the shared parental intention of the parties is still part of the analysis, but it’s not the focus. It’s a hybrid approach that considers all of the factors in determining where the child was habitually resident immediately prior to the wrongful removal or retention,” he tells AdvocateDaily.

Stangarone says the law has been trending towards this hybrid approach in other jurisdictions outside of Canada.

“It’s now being taken up by Canadian courts,” he says.

Ontario Court of Appeal

In the Court of Appeal matter, the parents, who raised their four children in Germany, moved their family to Ontario. Following the move, the couple separated , and the father wanted to return to Germany with the children while the mother wanted to remain in Ontario. The father commenced an application under the Hague Convention seeking the children’s return to Germany, but the application judge concluded that the children were habitually resident in Ontario.

In dismissing the appeal, the panel endorsed the two-step approach to habitual residence that the application judge took — first determining when the alleged wrongful removal or retention took place, and then determining in which state the children were habitually resident immediately prior to that removal or retention.

“The determination was fact-based,” says Stangarone, who was not involved in the matter and comments generally. “It’s not encumbered with presumptions or formulas. You have to look at what was the focal point of the child’s life — the family and social environment — immediately before the removal or retention, not post-abduction. We’re talking about the child’s links to the country, the circumstances of the move and then the child’s links to the next country.”

Stangarone clarifies that Hague Convention abduction cases are not about custody and access.

“They’re about the interests of children being served by sending them back to their country of habitual residence so that custody and access issues can be properly determined by the court there, based on a full exposition of the evidence,” he says.

"Settled In" Exception

The Court of Appeal also turned its attention to the “settled in” exception, which is limited and only comes into play if someone has not commenced their Hague Convention application within one year of the wrongful removal or retention, Stangarone explains.

“If someone waits 18 months and then starts the application, they are going to be faced with an Article 12 defence. It opens the door to consider post-abduction or post-removal/retention factors to demonstrate the child is now settled into their new environment. There is no longer a mandatory return, so at that point, you have to consider the connection to the country at the time of the hearing,” he says.

In this case, the proceedings were commenced within a year of the date the retention was found to have taken place, emphasizing the importance of that finding, Stangarone says, noting the appeal court dismissed the father’s argument that the original decision took into account post-retention factors.

Hague Convention Case Preparation

In day-to-day practice, Stangarone says the new approach has not changed the preparation required in a Hague Convention case.

“Frankly, I don’t see a dramatic difference in how we’re determining habitual residence. There is certain evidence that counsel has to be cognizant of marshalling about the child’s nationality, identification cards, health cards, and medical appointments, and where their school is,” he says. “You have to lead the evidence showing the focal point of the child’s life prior to the removal, so in that sense, we were doing that before the SCC decision. Now it’s evidence of the focal point rather than the parental intention. The differences occur when we’re dealing with time-limited consensual stays.”

However, Stangarone says that intention is still a factor — it’s just not the only one.

“It’s a nuanced approach that’s unencumbered by presumptions and rigid rules,” he says. “Marshall all the evidence and then the judge will decide.”

What COVID-19 has taught us

Sat, 03 Jul 2021 18:01:59 GMT

Gary Joseph | Apr 2020

The COVID-19 virus is a risk to all but specifically it targets and exposes the elderly and those with compromised immune systems. In the same way the pandemic has exposed our court system for what it is...

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Court of Appeal weighs in on non-disclosure

Sat, 03 Jul 2021 17:55:53 GMT

Gary Joseph | Apr 2020

In late February I wrote and opined on the "impressive reasoning" of Justice Cory Gilmore of the Superior Court of Justice in her analysis of the partial summary judgment motion and costs claims in Leitch v. Novac 2019...

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RESP order shows scope for creativity in family law costs awards

Sat, 03 Jul 2021 17:45:33 GMT

William Abbott | Mar 2020

RESP order shows scope for creativity in family law costs awards

A recent decision shows the potential for judicial creativity when it comes to costs awards in family matters, says Toronto family lawyer William Abbott.

Abbott, a partner with MacDonald & Partners LLP , acted for the paternal grandparents of the five-year-old boy at the heart of the case of Schmeler v. Schmeler, which concerns their acrimonious dispute over custody and access with the child’s mother.

RESP and Family Law

Following the agreement mid-trial of a settlement favorable to his clients, Abbott convinced Ontario Superior Court Justice Robert Del Frate to order the mother to pay $2,500 per year into a Registered Education Savings Plan (RESP) set up for the benefit of her child, as part of his costs award against her.

“There was some money paid into court to court as security for costs, but this shows that costs awards don’t always have to be in the form of money to the opposing party,” Abbott says. “There is caselaw supporting the idea that judges can also obligate someone to do something, such as making RESP contributions, which is what the court did here.”

According to the ruling, the case has its roots in the separation of the boy’s parents in early 2015 after less than three years marriage. As Del Frate notes in his judgment, the already fraught situation took on an added level of complexity when the boy’s father was killed in a motorcycling accident in 2018.

The grandparents were already closely involved in the child’s care, because the father had been living with them while sharing custody on a week-about basis with the mother. However, following his death, the grandparents added themselves to the ongoing litigation in order to challenge the mother’s unilateral decision to appoint herself the child’s sole custodian and decision-maker.

RESP Payments and Custody Settlement

While a settlement halted the custody and access trial on the third of five scheduled days with the week-about schedule and joint decision-making restored, Abbott pursued a costs order on behalf of his clients, arguing that the litigation was only necessary because of the mother’s unreasonable behavior. Indeed, a series of previous judgments in the case were critical of her actions, while the final agreement improved on the grandparents’ earlier offer to settle.

The mother, for her part, claimed that she only ever acted in what she believed were the best interests of her child by asserting her case to be the primary parent. In addition, she asked the judge to consider the impact a cost award would have on her ability to provide for her son, given her limited financial means and diminished earning potential while receiving disability benefits.

Abbott explains that his clients’ request for costs was not so much about the money as it was concerned with deterring further costly, disruptive and unnecessary litigation. While the grandparents assessed their costs at $70,000 on a substantial indemnity basis, they were happy to accept the $35,000 previously paid into court by the mother as security for costs, but also asked for an additional order requiring her to pay $2,500 into an RESP opened for the child.

Incident of Support under the Family Law Act

“I think judges are going to be more inclined to order costs if the money is going towards the child’s care and education, rather than simple to the other party,” Abbott says.

In his decision, Del Frate said he understood how parties such as the mother in this case can become “obsessed and convinced” in their belief that they are acting in the best interests of their children

“I do take into consideration the challenges that the mother is facing. Still, her conduct must be deterred,” he concluded, ordering the $35,000 held by the court to be paid out as an all-inclusive amount for the costs claimed by the grandparents.

The judge also ordered the mother to pay $2,500 into an RESP set up for the child annually until 2025. In the event the boy never enters post-secondary education, Del Frate ordered that the funds in the RESP can be paid out directly to the child in 2039, by which time he will be in his mid-20s.

In addition, the judge ruled that the mother’s payments into the fund will be considered an incident of support under the Family Law Act, meaning the requirement would survive the mother’s bankruptcy.

Spousal Support a Thorny Issue for Boomers Retirees

Sat, 03 Jul 2021 17:16:55 GMT

William Abbott | Mar 2020

Spousal support obligations following retirement are set to become a hot topic as Boomers head towards the end of their working lives, says Toronto family lawyer William Abbott.

Abbott, a partner with MacDonald & Partners LLP , recently acted for a 60-year-old man who successfully moved to terminate a 20-year-old support order so that he can retire in financial and bodily comfort.

“As the Baby Boomers continue moving towards retirement, this is only going to become a bigger issue,” he says. “Decisions are all over the map when it comes to whether someone has paid enough support, but in this case, the judge found he had already paid long enough, so he could go ahead and stop support.”

Retirement and Child Support

According to Abbott, prospective retirees at the younger end of the age scale or with dependent children are most likely to face resistance if they are still paying spousal or child support to a former partner.

For example, many public sector employees may be entitled to retire on an unreduced pension in their 50s under the “85 factor,” which kicks in when their age and years of service add up to that number.

“Courts may not agree that it’s reasonable to retire and reduce support when you have children still at university,” says Abbott, who asks his clients to turn their mind to retirement when settling their divorce, often many years before it becomes a live issue.

“We might have it written into the settlement that the support payor undertakes – barring a catastrophic change in circumstances – not to retire until a certain year, so that you know the support will run at least until the children should be finished in school,” he adds.

Laroche v. Lynn

According to Ontario Superior Court Justice Gregory Ellies’ decision in Laroche v. Lynn , the parties separated in 1996 after 12 years of marriage and settled their family law issues in 1999 on terms that were incorporated into a final order. In the two decades since, Abbott’s client had paid his former wife $700 per month in spousal support.

After becoming eligible to retire from his job as a mining engineering technologist in 2019, the man brought a motion to vary the terms of the 1999 order, claiming he could not afford to continue paying support after he stopped working, which would roughly halve his annual income. Following 42 years in the job, he told the court he was in constant pain, and wanted to stop working so that he could move to Alberta to be nearer his son and grandchildren.

“He got into a chicken-and-egg kind of situation, where he wanted to retire, but couldn’t until he knew the support would be stopping,” Abbott says.

In response, his client’s ex-wife, who receives benefits through the Ontario Disability Support Program, asked the judge to increase her support entitlement, due to her inability to work and her former spouse’s wage increases since their separation.

The first part of the decision dealt with the admissibility of evidence from the former wife’s treating psychiatrist, who expressed the view that the woman’s long-standing and continuing mental health problems prevented her from holding down a job in the near future.

Justice Ellies found the evidence ought to be excluded under r. 20.2 of the Family Law Rules, concluding that the psychiatrist’s opinion strayed beyond the scope allowed by suggesting that her patient could not find any kind of employment to accommodate her needs.

Still, even if he had admitted the evidence, “it would not change my decision to terminate spousal support,” the judge added.

Spousal Support Termination and Retirement

While noting that courts are generally reluctant to vary spousal support orders on the basis of early retirement in longer marriages, Justice Ellies wrote that the 12-year union in this case was more of a medium length, and that there was no evidence the man was seeking to avoid paying support. As a result, the judge found that his retirement eligibility constituted a material change in circumstances.

Justice Ellies went on to find that support should be terminated rather than reduced, after concluding that Abbott’s client had paid close to the maximum amount of support required, and for much longer than contemplated by the Justice Department’s Spousal Support Advisory Guidelines.

“Regardless of overall quantum, Mr. Lynn has been paying support for much longer than the Guidelines would suggest. After 20 years, I believe that, if Ms. LaRoche is, indeed, unable to work because of her disability, it is time that she relied on the public assistance that is clearly available to her, rather than on Mr. Lynn,” Justice Ellies wrote. “An order shall issue terminating the support payable to Ms. LaRoche.”

Ontario court returns abducted children to Nevada in Hague Convention case

Tue, 22 Jun 2021 16:08:46 GMT

Michael Stangarone | Mar 2020

A Nevada father breathed a sigh of relief after an Ontario Superior Court judge ordered the return of his abducted infant children to the U.S. state, says Toronto family lawyer Meghann Melito .

The case of V. v. O. was heard in Newmarket, several months after the Canadian mother fled with the former couple’s two young children to the Greater Toronto Area from Nevada, where divorce and custody proceedings were already underway.

Justice David Jarvis ordered the children returned to Nevada under the Hague Convention, dismissing in the process the mother’s application for temporary care and control of the youngsters.

“As you can imagine, he was thrilled to get the children back,” says Melito, an associate with MacDonald & Partners LLP , who acted for the successful father along with firm partner Michael Stangarone.

Child Abduction Lawyer

Both have significant experience litigating child abduction matters under the Hague Convention, to which both Canada and the U.S. are signatories.

“He and the children have been put through the ringer, and they continue to incur legal fees both in Canada and the U.S. as a result of the mother’s actions. But from what we hear, they are all doing well,” Melito adds.

Parents whose children are abducted internationally by former partners face a particularly challenging situation, according to Melito. In addition to the emotional turmoil that comes with uncertainty over the children’s location and severed communications, parents are also forced to confront more practical issues.

“Unless they take action, the left-behind parent risks being labelled as acquiescent to the removal,” Melito says.

Hague Convention & Ontario Law

And while the Hague Convention provides a framework for returning children from signatory countries, it’s far from straightforward:

“It’s an intense procedure and immediate steps are required,” Melito explains.

According to Jarvis’ ruling, the two children at the heart of this case – each under three years old – were born in Ontario, but the family departed shortly after each birth to a home in Nevada owned by the father’s relatives.

Following the younger child’s arrival in September 2018, the family lived together in Nevada from October 2018 until April 2019, when the mother launched a child custody application in the U.S., alleging domestic abuse against the father.

After a failed attempt to limit the father’s access to the children and her eviction from the family residence, the decision says that the mother entered Canada with the children on June 28. The father only found out four days later when the mother emailed her Nevada lawyer, who passed on the news.

In Ontario, the mother launched and later withdrew a custody and child support application, before the father initiated his own request for his children’s return to Nevada, via Melito and Stangarone.

According to Melito, a thorough review of the Nevada court file paid dividends for her client in Ontario, where

“When you compared the multiple pleadings in the different jurisdictions, they gave completely different accounts,” she says. “There’s no more effective way to impugn a person’s credibility than by using their own words.”

Indeed, Jarvis noted that the mother’s competing representations were “impossible to reconcile,” citing numerous examples of the mother’s lack of credibility in his decision.

After reviewing the evidence, Jarvis rejected the mother’s claim that the children had been resident in Ontario since January 2018, concluding that they were habitually resident in Nevada before she “wrongfully removed them from the United States to Canada” without the father’s consent.

In addition, he found none of the exceptions to the Hague Convention applied in this case, and ordered the children be returned to Nevada.

"Time is of the Essence"

Melito says “strong and decisive case management” is crucial in Hague Convention matters, since time is of the essence.

“We benefited from Justice Jarvis’ ability to preside over each attendance and his decisions were comprehensive,” she says. “It makes a big difference when the judge knows the parties and is able to easily recall previous discussions.”

The children eventually returned to Nevada without their mother in late 2019 following an elaborate protocol designed to ensure her compliance.

Melito says the procedure was complicated by the fact the children’s passports had, at one stage, been reported stolen by the mother. In addition, the father had moved to have their travel documents flagged in a passport lookout program in case the mother attempted to flee again.

“We had to obtain new passports for them and there were some extra security measures at the point of departure, but it all worked out in the end thankfully,” Melito says.

Multiple masters: A modern lawyer’s dilemma

Tue, 22 Jun 2021 16:04:58 GMT

Gary Joseph | Jan 2020

The website for the Law Society of Ontario (LSO) states that it exists to govern the legal profession in the public interest. LSO governs its members through the Rules of Professional Conduct (the Rules). Professional standards for lawyers are governed by these regulatory codes but also by legal standards determined and imposed by the courts and by statute. The distinction between regulatory and court-imposed standards are often theoretical but at times not. The most recent example of where these standards may conflict can be found in the now resolved dispute between lawyer Joseph Groia and the LSO.

This article is not offered as analysis of the various decisions in Groia nor an opinion piece on its ultimate impact on the profession. Groia will simply be referred to in the context of the plethora of duties owed by practising lawyers and the difficulties in gaining consensus among the bar, the bench and the LSO as to what they all mean and more importantly, how they intersect and impact daily practice. Finally, I will consider whether these duties are congruous with the practice of law in our modern society.

Duties and the LSO

The LSO Rules are an admirable, well-organized summary of the various duties owed by the practising lawyer, drafted from a regulatory point of view.

Historically, there was a debate as to whether the Rules should be inspirational or solely regulatory. Should they inspire professional conduct or create a minimum standard to which members of the profession will be held accountable? The sensible compromise reached by the most recent version of the Rules is that they now embrace both purposes but distinguish them clearly. They use both mandatory language: “shall,” where compliance is subject to regulatory sanction for failure and, “should,” where it is merely inspirational.

Duties and the courts

The Supreme Court of Canada has weighed in on the duties owed by lawyers to the administration of justice. The court has made it clear that its pronouncements on these duties are not limited to “in court” conduct. In Quebec v. Jodoin 2017 SCC 26, the court confirmed that lawyers, as officers of the court, have a duty to respect the court’s authority and that the courts have the right and duty to supervise the conduct of lawyers. The court in Jodoin also pointed out that the courts do not have to rely upon law societies to oversee and sanction any conduct by lawyers that they may witness. In an earlier decision, R. v. Cunningham 2010 SCC 10, the court held that “as counsel are key actors in the administration of justice, the court has authority to exercise some control over counsel when necessary to protect its process.”

Groia

Groia’s disciplinary proceedings arising from the spectacular downfall of a mining company are well known to the profession. His battle with the LSO went all the way to the SCC. The tension between court control and LSO control over counsel is best illustrated in the writings of the Ontario Court of Appeal (ONCA) in both majority holding and dissent. Justice Eileen Gillese, writing for the majority, upheld the LSO discipline proceedings of Groia, while the forceful dissent of Justice David Brown found to the contrary. For a student of the law, these contrasting writings are an exciting illustration of two powerful but opposing views based upon the same fact situation.

The SCC reversed the ONCA (LSUC v. Groia 2018 SCC 27) and Groia was vindicated and became the recipient of a large cost award against the LSO. The SCC affirmed that its role in controlling conduct of counsel is separate from the role played by law societies in regulating lawyer’s conduct. The court noted that its authority is preventative (to protect the administration of justice) whereas the law society’s role is reactive.

Multiple duties and modern practice

The Rules most certainly guide the lawyer to be competent, professional and ethical. The courts guide lawyers in the presentation of cases and in conduct generally that respects and fosters the proper administration of justice. However, there are often competing duties imposed upon lawyers that require delicate balancing that often is easier said than done. For example, Rule 5.1.1 requires the lawyer to balance the interests of the client with his/her obligations to the court, the profession and the law.

The duty to the client is to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer believes will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by the law. But that duty is juxtaposed with the lawyer’s obligation to do all that by fair and honorable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the court with candour, fairness, courtesy and respect in a way that promotes the parties’ right to a fair hearing where justice can be done.

To parse those multiple and sometimes incongruent duties is painstaking and can create legal and ethical dilemmas for counsel. Meeting the demands of an ever demanding clientele in a highly competitive work environment is taxing and layers on further stressors.

Let me suggest that today’s lawyer not only has to answer to the LSO and/or the courts for his/her conduct but the ever growing and fully unregulated Internet. Social media, rating websites and alike are constantly used by disgruntled clients or opposite parties to disparage lawyers and their representation of clients. Lawyers are defenseless to these postings and ratings that are often unfair and inaccurate. While trying to meet the very high standards rightly imposed by the LSO and the courts, some lawyers may find that in the court of public opinion — in this case, social media — their ethically pure conduct is condemned. The public and clients in particular are not attuned to the multiple duties lawyers carry as servants of the law. Clients care most often about one thing; their case or file. They are intolerant of the lawyer’s obligation to the administration of justice.

A useful example of this arises when counsel is obligated as an officer of the court to fairly advise the court of precedent contrary to his/her client’s position, even if opposing counsel has failed to do so. The administration of justice is served by this requirement that protects the integrity of stare decisis and fosters consistent judgments. However, to the client, this is often outrageous and unexplainable conduct on the part of the lawyer hired to champion their case.

Lawyers will continue to serve two and more masters in the representation of clients in and out of our courts. Groia’s multiple-year struggle and the varying views on the dispute at all levels of regulatory tribunals and courts best illustrates the tensions that define these concerns. Better education of the public, led by the LSO, would be helpful in easing some of these tensions and relieving practisng lawyers of some of the pressures upon them as they try to meet the demands of all of their “masters” while practising in a competitive market.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners, with kind assistance from senior associate, Elissa Gamus .

Former Husband Income Loss Can’t Reduce Support Obligations

Tue, 22 Jun 2021 16:01:23 GMT

Stephen Kirby | Jan 2020

A recent Superior Court judgment shows former spouses may struggle to reduce their support obligations if they are at fault for their own income loss, says Toronto family lawyer Stephen Kirby .

The case of S. v S. concerned a former husband’s attempt to vary the terms of his settled divorce due to the closure of his pub, which he claimed had left him with just a modest pension to live on.

But the judge granted summary judgment in favour of his ex-wife, dismissing the man’s request to terminate spousal support.

Kirby, an associate with MacDonald & Partners LLP, acted for the successful wife along with firm partner Michael Stangarone .

“What’s interesting about the case is that there was no real dispute that he had actually lost his income,” Kirby says. “But it ultimately didn’t matter, because the only available evidence showed that it was his own fault.”

The case has a long and tortured history, dating back more than a decade to the parties’ separation in 2007 after 34 years of marriage.

Following the split, the couple’s interest in a profitable Oakville pub took centre stage in their dispute, and in one key 2012 ruling, a judge ordered that ownership of the popular establishment transfer fully from the husband to the wife.

However, as part of a final settlement reached in 2014 and converted to a final order by the court, the wife returned the pub to her former spouse. For his part, the husband agreed to pay his ex-wife $5,000 per month in spousal support and to designate her as the beneficiary of two life insurance policies with face amounts of $100,000.

But the husband almost immediately failed to comply with the terms of the order, and by September 2019, his spousal support arrears had surpassed $200,000.

In July 2018, shortly after the pub’s demise, the husband moved to terminate support, relying on a term of the 2014 final order specifying that “the landlord’s refusal to renew the lease for [the pub], through no fault of the respondent, shall constitute a material change in circumstances.”

He also asked for the support termination to be backdated to January 2015, arguing his personal and business income were insufficient to satisfy the obligation.

Kirby explains that the wife’s motion for summary judgment was brought in response as a way of preventing her former spouse benefiting from his own misconduct.

During argument, he and Stangarone drew the judge’s attention to a court ruling in the separate dispute between the pub’s ownership and its landlord over the lease. The judge, in that case, ruled against the husband’s company, relying in part on an audit report that showed he had under reported the pub’s revenues and failed to pay his rent promptly. As a result of these breaches, the landlord declined to renew the lease, according to the decision.

In the family law case, the husband argued that summary judgment was unavailable because the court did not have enough evidence to decide whether he was at fault for the lease termination.

However, the judge disagreed, ruling that the motion to change should be dismissed as there was no genuine issue requiring a trial. If there was any evidence to support the husband’s case, now was the time to present it, the judge added, noting that parties are required to put their “best foot forward” on motions for summary judgment.

“In the absence of such evidence, I am of the view that I can comfortably draw the inference that there is no further evidence that would help him to show that the termination of the lease was through no fault of his own,” she wrote.

Even if a trial had been required, the judge wrote that she would have stayed the husband’s motion to change until he was in compliance with previous court orders. By allowing the face value of one of his life insurance to fall to $50,000, she ruled that he was in breach of the 2014 final order, while he had also failed to pay two subsequent costs orders made in his ex-wife’s favour.

“It has been a very difficult time for our client, and she is very pleased with the result,” Kirby says.

Judge’s Decision to Reject Settlement Divides Appeal Court

Tue, 22 Jun 2021 15:57:25 GMT

Gary Joseph | Jan 2020

When two parents reach an agreement over the future of their children mid-trial, the judge needs a very good reason to reject it.

In the recent case of Richardson v. Richardson, the Court of Appeal for Ontario tackled a trial judge’s refusal to approve a proposed settlement – without providing reasons for the rejection – before reaching his own decision at the end of the trial.

While a majority of the three-judge appeal panel upheld the trial judge’s decision, the result also generated a rare, no-holds-barred dissent from Appeal Court Justice Ian Nordheimer, who questioned the message it sends about the sanctity of settlements and the fairness of the entire process.

Case Background

According to the appeal court ruling , the parties, who separated in 2012 after nine years of marriage, have a 14-year-old daughter and an eight-year-old son.

Following their split, the parents each entered new relationships and agreed to joint custody of their children, who divided their time between residences in the Niagara Region.

However, in mid-2017, the mother brought a motion to change the arrangement after selling her Niagara home and moving to the Ottawa area for her new job. She wished to have the children reside primarily with her in the nation’s capital, but the father objected, and the matter ended up proceeding to trial in April 2019.

The Trial

One day into the scheduled four-day trial, the parties were granted an adjournment with the possibility of a negotiated settlement on the horizon.

The talks bore fruit, and the next day the parties presented a proposed settlement that would have seen the children move to Ottawa to live with their mother, but given the father final decision-making authority concerning them.

However, the trial judge refused to approve the settlement, adding that he “can’t really say why. I just want to hear all the evidence.”

Once the remaining witnesses had been heard, the trial judge delivered a verdict expressing concern about the mother’s credibility and motivations. He denied the mother’s requested changes, finding a move to Ottawa would not be in the best interests of the children.

Still, the trial judge found a change to the access schedule was in order, and largely accepted the father’s draft proposal, with the children remaining in the Niagara region and residing primarily with him.

Appeal Court Decision

The appeal revolved around the trial judge’s rejection of the proposed settlement, which the mother argued went against the best interests of the children, violated the principles of fundamental justice, and demonstrated bias.

But Justices Paul Rouleau and Grant Huscroft in the majority denied the appeal:

“We conclude that the trial judge had the authority to reject the proposed settlement if he found that it was not in the best interests of the children,” they wrote. “Although he erred in failing to provide reasons for his decision to reject the proposed settlement, there is no basis for this court to interfere with the decision the trial judge reached following trial. The findings he made confirm that the custody and access order he made was in the best interests of the children.”

The majority decision acknowledged the difficult position the judge was placed in by the “exceptional” circumstances of this case, suggesting judges who find themselves in similar situations must provide reasons that are “carefully crafted, and could be very brief.”

“This is to avoid the appearance that the judge prejudged the case, which would preclude the judge from continuing to hear the case. Depending on the judge’s concerns, the reasons may do little more than advise the parties that, at that stage of the proceeding, and without hearing the balance of the trial, he or she is not prepared to find that the settlement is in the best interests of the children. More complete reasons could then be provided at the end of the trial,” they added.

The Dissent

According to Justice Nordheimer’s stinging dissent, the trial judge’s rejection of the settlement “so tainted the conduct of the proceeding that his disposition cannot be allowed to stand.”

“To do otherwise fundamentally undermines the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted,” he added.

Dismissing the proposal without reasons not only undermined “the whole settlement process and its importance to the overall functioning of the litigation process,” but it also “irretrievably compromised” his position as trial judge “as a result of his knowledge of the terms of settlement to which the parties had agreed,” wrote Nordheimer, who would have given granted the appeal and given effect to the rejected minutes of settlement.

Justice Nordheimer really came out swinging in this very strong dissent. And, with respect, I must say that I find his approach quite compelling and preferable to that of the majority.

When the two people who know their children best work out a settlement, a judge needs to have compelling reasons for rejecting it.

In cases like this, a judge who explains why the proposal doesn’t work and recuses themselves from hearing the rest of the trial allows the parties a chance to present a modified settlement addressing the concerns raised, or to recommence the trial with a new judge.

Judge Cuts Through Post-Separation Noise

Tue, 22 Jun 2021 15:45:08 GMT

Gary Joseph | Dec 2019

Judge cuts through post-separation noise to set appropriate parenting schedule in high-conflict case

In the wake of a messy separation, the reality of the couple’s parenting roles during the marriage can easily become obscured by the noise of the ensuing conflict.

A judge’s job in these cases is to cut through that noise, and settle on a parenting schedule that reflects the status quo in happier – or at least reasonably calmer – times.

And that’s just what an Ontario Superior Court judge did in her recent decision in the case of D. v D., in which I acted for the father of the two-year-old girl at its heart.

Facts

The parties separated in July 2019 after three years of marriage when the father was charged with two counts of assault and a further count of assault with a weapon against the mother.

Following an urgent motion brought by the mother, the father was granted supervised access for a few hours three days a week. His supervised access was gradually increased over the next few months to include an overnight stay at weekends, before he reached an agreement with the Crown that would see his criminal charges withdrawn in the spring of 2020, so long as he completes a counselling course.

Following a hard-fought motion complicated by the mountain of written material generated by the parties, the judge ordered a shared parenting schedule for the child’s care in line with the maximum contact principle, in a ruling containing a series of notable holdings:

Parenting Time

During a relationship breakdown, people jockey for position and make allegations against each other.

While the mother argued for a more gradual increase from the father’s existing limited access, our position was that her actions since separation were designed to create a false status quo portraying her as the primary parent.

Acknowledging that the existing parenting schedule was the product of three consent orders, the judge noted that the father was previously constrained by his outstanding criminal charges and that their pending resolution had cleared the way for substantive changes.

In addition, the bad behaviour exhibited by both sides in the case “in no way detracts from them both being loving and caring parents,” the judge wrote.

“Both have been integrally involved in C.D.’s care. The fact that C.D. has been n the mother’s care significantly more since the criminal charges arose should not be a deciding factor in this case, particularly given the now known status of the criminal charges,” the judge wrote, granting the father unsupervised access two nights per week, as well as alternate weekends.

“It is in C.D.’s best interests and in accordance with the maximum contact principle that her father resume the significant role he had in her life and must continue to have. If there prove to be issues with that, they can be dealt with at trial,” the judge added.

I think the end result should be very encouraging to both men and women. The sooner post-separation you can get to parenting plans that reflect the marital reality, the sooner you can avoid these kinds of fights.

Sur-reply

During argument, the mother sought an order preventing the father from relying on certain portions of his affidavit, claiming they were inadmissible under Rule 14(2) of the Family Law Rules as sur-reply to her own earlier reply affidavit.

Despite finding the passages were properly characterized as sur-reply, the judge declined to exclude them after concluding that they were “relevant and necessary” for the court’s consideration and that the father should be allowed to respond to the “new and serious allegations” contained in the mother’s affidavit.

While I don’t necessarily agree – with respect – that the paragraphs were in fact sur-reply, the motion judge’s approach shows that when parenting issues are being decided, the court will take a more relaxed approach to the receipt of material, even if it offends Rule 14(2).

Voice Recordings

Surreptitiously obtained voice recordings are a common feature of high-conflict family law cases, and this one was no exception.

My client objected to the mother’s introduction of voice recordings made by the mother, at least one of which she admitted under questioning to have shortened or edited while secretly gathering evidence in anticipation of their separation.

Referring to an influential 2006 decision in Hameed v. Hameed in which Ontario Court Justice Stanley Sherr highlighted the reliability problems with surreptitiously recorded phone calls and discouraged their use in family law cases, the motion judge in our case expressed doubts about admitting the mother’s evidence.

“Combining the public policy and reliability concerns with the mother’s own admissions that she edited the recording and was secretly accumulating evidence for a separation, the admissibility of the recordings is problematic,” she wrote. “However, given the child-related issues at stake, I listened to the recordings. On their face, they raise concerns about the father’s behaviour towards the mother, but it is impossible to give much weight to the recordings given the problems with their reliability as outlined above.”

This approach reflects a trend for judges to receive this type of evidence when deciding parenting issues, but dealing with it on the basis of reduced weight.

Michael Stangarone Recognized as a Leader in Family Law in Toronto

Tue, 22 Jun 2021 15:41:04 GMT

Michael Stangarone | Aug 2019

MacDonald and Partners LLP is pleased to announce that Michael Stangarone , Partner, has been recognized as a leader in his field in the latest edition of The Best Lawyers in Canada® for his work in Family Law in Toronto for the second straight year. He was previously recognized for his strong litigation skills as a Lexpert Ranked lawyer in 2019.

Joining MacDonald & Partners LLP as an associate in 2005, Michael became a partner in 2011, and is an effective, strong litigator in the courtroom, and reasonable negotiator, successfully resolving complex Family Law matters during difficult times. Michael’s law practice includes all areas of family law, such as high conflict custody and access cases, complex property and support matters and interjurisdictional support matters, trials and appeals. Michael also has specific expertise in the area of international child abduction, and has been involved in many abduction cases.

Best Lawyers® is the first and foremost resource for best legal talent worldwide. It is based on peer reviews using a transparent survey process designed to elicit meaningful and substantive evaluation of the quality of legal services provided by a lawyer.

Michael Stangarone feature by Moshier Law

Tue, 22 Jun 2021 15:38:31 GMT

Michael Stangarone | Aug 2018

Michael Stangarone's involvement with a case involving a Canadian women's plea to have her abducted child returned has been featured by Moshier Law. Please take the time to read their article The Hague Convention and Relocation of a Child Interstate or Internationally.

Michael Stangarone has been recognized as a leader...

Tue, 22 Jun 2021 15:34:45 GMT

Michael Stangarone | Aug 2018

MacDonald and Partners LLP is pleased to announce that Michael Stangarone has been recognized as a leader in his field in the latest edition of The Best Lawyers in Canada® for his work in Family Law in Toronto. He was previously recognized for his strong litigation skills as a Lexpert Ranked lawyer in 2017.

Michael’s law practice includes all areas of family law, such as high conflict custody and access cases, international abduction cases, complex property and support matters, and interjurisdictional support. Joining the MacDonald & Partners LLP as an associate in 2005, Michael became a partner in 2011, and is an effective, strong litigator in the courtroom, and reasonable negotiator, successfully resolving complex Family Law matters during difficult times.

Best Lawyers® is based on peer reviews using a transparent survey process designed to elicit meaningful and substantive evaluation of the quality of legal services provided by a lawyer.

The harnessed power of the brainstorm

Tue, 22 Jun 2021 15:31:24 GMT

William Abbott | May 2017

Good ideas can come out of thin air. Generating consistently great ideas, however, requires more than mere luck. Creative thinking must be fostered, and it must be actively supported at all levels of the organization. Regular brainstorming sessions can help.

Brainstorming as a way of working begins with the realization that innovative ideas must be nurtured. “So many lawyers are strapped for creative thinking time. Unless you carve out intentional space and time to think about your business and how you can improve, innovation discussions simply don’t happen,” said Kate Dewhirst, founder of Kate Dewhirst Health Law in Toronto.

At MacDonald & Partners LLP in Toronto, groups are often set up, sometimes around a specific project, to engage members of the legal team and to encourage creative thinking. The composition of the groups does not follow hierarchy, however; senior partners and associates sit next to each other, sleeves rolled up, thinking caps on. “We try not to have decision-making coming down from the top. That stifles creativity,” said Gary Joseph , the firm’s managing partner.

Blurring the lines between associate, partner, clerk and CEO also sends a message about the organization’s commitment to innovation and inclusion. “Everybody has something of value to contribute,” Joseph said.

Ideas are fostered in an atmosphere of openness. Therefore, individuals must feel safe about making suggestions that may seem to be off the wall or impossible to achieve. For brainstorming to be effective, participants must feel secure any suggestion they bring forward will be welcome. In the end, it may not be acted on, but it will not be dismissed out of hand. “Inclusion forces everyone to look at an issue and from different perspectives,” said Joseph. “Partners may not agree with a proposal, but it will encourage them to rethink their approach.”

Dewhirst recommends demystifying the term “innovation.” At its core, creative thinking involves identifying standard practices and considering alternatives, she noted. “Every lawyer has the ability to collect information to determine the status quo. And every lawyer is trained to consider alternatives. The challenge is applying those skills in a Selfreflective exercise.”

An essential first step for many legal teams is recognizing that brainstorming and other means of inventive thinking are needed at all. “Lawyers can easily fall into the trap of why mess with what is already working and may not see the need to innovate their offerings and products if they are currently busy with client work,” Dewhirst said.

Such complacency is no longer acceptable, stressed Joseph. “There are demands on firms to be innovative. It’s not optional. You need to create and to keep up. There has been a huge shift in the way law firms operate.”

The basics of brainstorming have not changed since U.S. ad exec Alex Osborn originated the approach in 1953 when his book Applied Imagination hits bookstores. Four fundamentals defined the process then and now: opt for quantity over quality, ban criticism, get wild, and build on individual ideas. While those basics continue to describe effective brainstorming, reality must be acknowledged. Often ideas are dismissed, albeit silently, because of the person proposing the suggestion or a reluctance to adopt the idea itself. That’s where enhanced brainstorming can help, Brad McRae pointed out in his book The Seven Strategies of Master Negotiators. He recommends that others in the room be called on to show how someone else’s idea could work. This will foster buy-in and greater openness to ideas.

Today, noted McRae, director of the Atlantic Leadership Development Institute in Halifax, brainstorming can be anonymous. For virtual and very busy teams, e-mail can be used to generate participation anonymously. No one has to know who suggested an idea, so inherent biases are diminished.

Joseph also advises doing away with tools — such as flipcharts, PowerPoints and white boards — that are closely associated with traditional meetings and a one-way flow of information. “That just encourages people to sit there and take notes,” he said. Instead, he recommends engaging people directly by asking them for their insight. “That gets people talking and away you go.”

Brainstorming ultimately works because the people in the room or at the other end of the e-mail chain feel safe to contribute to the conversion. Ensuring — and creating — that sense of security is the responsibility of the organization itself. “You have to foster a culture where people feel comfortable to express their ideas,” said Joseph. “Senior people need to seek input. If you make people feel that their opinions are important you will get valuable input.”

For legal teams looking to make their first foray into brainstorming, Dewhirst suggests starting with what you know. Ask yourself what are the most common questions from clients, she said. “The answer to that question will identify patterns and opportunities to package up your advice in new ways.”

Then dig deeper into what truly motivates your clients. Look at what they value, and what they don’t. Look closely at what inspires them and what concerns them. “Evaluating what matters to your clients is the cornerstone of innovative thinking,” Dewhirst said. “You miss many opportunities if you are not thinking about the client experience.”

It may also be helpful to get outside help. Joseph points out that a professional facilitator from outside the firm can be effective in stimulating creativity within the team. Training, in areas such as legal writing, will also encourage collaboration and teamwork.

Finally, the team must look inside and outside the profession to see how organizations generate great ideas. “Consider looking at the websites and offerings of legal brands who have made a splash,” said Dewhirst, who also advises having “a conversation about the ways in which other industries have changed and what prompted those radical shifts.”

Perpetual students: child support beyond the first degree

Tue, 22 Jun 2021 15:26:23 GMT

William Abbott | May 2017

Pursuant to s. 2(1)(b) of the Divorce Act, a “child of the marriage” is one who is “the age of majority or over and under their [parents'] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

Case law has established that education qualifies as an “other cause” which prevents the child from withdrawing from parental care. Alternatively, pursuant to s. 31(1) of the Family Law Act, “[e]very parent has an obligation to provide support. Read more...

Mediation & Arbitration Explained

Tue, 22 Jun 2021 15:23:16 GMT

Gary Joseph | May 2017

“What is Mediation”

There is a pervasive misunderstanding as to this form of alternative dispute resolution. Mediation involves a neutral third party working to assist the parties in reaching a settlement of their dispute. Mediation may be “open” in which case in the event that no resolution is reached, the mediator may release a report on the process. Mediation may be “closed” such that only the fact of the mediation having taken place can be disclosed if no settlement is achieved.

“What is Mediation Not”

Mediators do not impose settlement nor do they adjudicate a result. Mediators are not to give legal advice.

“What is Arbitration”

Arbitration is simply private court. It is an adjudicative process with more flexibility than litigation involving the public courts. The parties must appreciate that they pay the arbitrator and often pay for the court reporter and arbitral facility.

“When Should You Arbitrate”

When privacy concerns are paramount, arbitration avoids a public record. When issues are highly focused or require speedy resolution, arbitration is often the better way.

“When Should You Not Arbitrate”

High conflict multiple issue family law disputes do not lend themselves well to arbitration. Further where there is a clear power imbalance as between the parties, arbitration is contraindicated. Finally where cost is a significant concern, the parties should carefully consider whether arbitration is the better way.

Contact MACDONALD & PARTNERS LLP

For more information about mediation and other methods of alternative dispute resolution, call us at 416-971-4802 or send us an email to set up an appointment in our downtown Toronto or North York office.

Family lawyers back NDP bill to amend Family Law Act

Sun, 13 Jun 2021 13:03:44 GMT

Gary Joseph | April 10 2017

For family lawyers like Gary Joseph, the Family Law Amendment Act (Support for Adult Children) has been a long time coming.

“Back in 2010, Justice [Carole] Curtis commented that this legislation needed to be amended to address this concern and the government ignored that,” said Joseph, a Toronto-based family lawyer. “I really think some questions should be put to the government and let’s see what they do with this bill. A private member’s bill is always hard to put through, but it’s an appropriate amendment.” Read more...

Payor income hike doesn't always increase support

Sun, 13 Jun 2021 13:03:43 GMT

Gary Joseph | September 23 2016

Marriage is, among other things, an economic partnership. In Canada, the relevant legislation has evolved to ensure that the economic benefits of this partnership are divided fairly upon its breakdown.

What sort of division is fair depends on the nature of the partnership being divided. Not all marriages involve complete economic integration. In some marriages, both spouses pursue their economic interests independently. In others, one spouse sacrifices their own career to enable the other to pursue theirs.

Depending on how they pursue their joint economic interests, a spouse may or may not be entitled to share in increases in their former spouse’s income after separation. Whether they will be so entitled is dependent on the facts of each particular case. No spouse is automatically entitled to increased spousal support simply because the payor spouse’s income increases after separation, although many family law practitioners believe otherwise. The courts have recognized three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory; and (3) contractual (see Bracklow v. Bracklow [1999] 1 S.C.R. 420).

Whether a spouse is entitled to share in increases in their former spouse’s income after separation largely depends on the basis of their entitlement to spousal support. A non-compensatory spousal support award is meant to ensure that the recipient spouse enjoys a lifestyle similar to that which they enjoyed during the marriage (see Fisher v. Fisher 2008 ONCA 11).

Post-separation increases in the payor spouse’s income are irrelevant to that purpose. As a result, they will not generally be shared with the recipient spouse. A compensatory spousal support award is meant to compensate the recipient spouse for the sacrifices and contributions they made during the marriage. In accordance with that purpose, a recipient of compensatory spousal support may be entitled to share in post-separation increases in the payor spouse’s income. As a result, a spouse’s entitlement to post-separation increases in their former spouse’s income depends primarily on whether the payor’s post-separation successes are traceable to the sacrifices and contributions made by the recipient spouse during the marriage.

In Thompson v. Thompson 2013 ONSC 5500, Justice Deborah Chappel outlines the relevant considerations when determining a payee spouse’s entitlement to post-separation increases in the payor spouse’s income. Justice Chappel’s approach has been widely accepted and was recently endorsed by the Ontario Court of Appeal in Hersey v. Hersey 2016 ONCA 494. According to Justice Chappel, the recipient spouse is more likely to share in post-separation increases in the payor’s income when their relationship was long, their financial affairs were completely integrated and the recipient spouse made sacrifices and contributions for the sake of the family which led to longstanding and significant benefits to the payor spouse (see Farnum v. Farnum 2010 ONCJ 378). When the spouses divided their responsibilities in a manner which suggests they made a joint investment in one career, the recipient spouse is likely to be entitled to share in the proceeds of that investment (see Hartshorne v. Hartshorne 2009 BCSC 698, reversed in part in Sawchuk v. Sawchuk 2010 ABQB 5, and Judd v. Judd 2010 BCSC 153). A recipient may have invested in the payor’s career in a multitude of ways: they may have funded the payor’s education or training; they may have contributed their time or money directly to the payor’s

When the spouses divided their responsibilities in a manner which suggests they made a joint investment in one career, the recipient spouse is likely to be entitled to share in the proceeds of that investment (see Hartshorne v. Hartshorne 2009 BCSC 698, reversed in part in Sawchuk v. Sawchuk 2010 ABQB 5, and Judd v. Judd 2010 BCSC 153). A recipient may have invested in the payor’s career in a multitude of ways: they may have funded the payor’s education or training; they may have contributed their time or money directly to the payor’s business; or they may have set aside their own career ambitions in order to care for their children and enable the payor to achieve greater career success. However, caring for the children will likely be insufficient unless the recipient spouse can demonstrate that they sacrificed their own opportunities to do so.

If the payor’s income increases as a result of post-separation developments which are unrelated to the career path they followed during the marriage, the recipient spouse is unlikely to share in that increase. For example, a payee spouse is unlikely to share in the benefits of a successful post-separation career change or increases linked to the payor’s own luck or connections. Unsurprisingly, it will be more difficult to link a post-separation increase in income to the recipient spouse’s contributions when a long time has elapsed since the marriage (Kohan v. Kohan 2016 ABCA 125).

Again, no spouse is automatically entitled to increased spousal support simply because the payor’s income has increased. In order to succeed with such a claim, the recipient needs to demonstrate that the increases in the payor’s income are linked to the contributions and sacrifices they made during the marriage. Whether those sacrifices are sufficient to ground a claim for greater spousal support will depend on the strength of the connection between their sacrifices and the payor’s post-separation successes.

Does a lawyer have automatic right to question wife?

Sun, 13 Jun 2021 13:03:41 GMT

William Abbot | June 2016

Toronto family law lawyer Will Abbott tells Law Times the central question in an unusual decision released by the Superior Court recently was whether or not a lawyer representing himself in his divorce had an automatic right to question his wife.

“A lot of people presume they do have an automatic right, but Justice McGee’s decision shows there is an important distinction between the Rules of Civil Procedure and family law rules in this area," says Abbot. Read Story in Law Times

Efforts to improve system significant

Sun, 13 Jun 2021 13:03:40 GMT

William Abbot | June 2016

Numerous efforts, including additional mediation options and the passage of new rules, have been made in an attempt to address public concerns over the family law system, Toronto family lawyer Gary Joseph says in Law Times .

“After eliminating most of the archaic demands of pleadings, it’s now easier to institute proceedings,” Josesph, managing partner at MacDonald & Partners LLP , says, referring to the passage of new Family Law Rules.

“Family law information sessions are provided for free to all new litigants in the family law system during which volunteer lawyers, social workers, and court staff deliver seminars. They clearly explain the process," Joseph writes in a letter to the editor on the topic of self-represented litigants.

A new and more extensive conference system, mediation offices in courthouses, a duty counsel system in courthouses, a dispute resolution system staffed mostly by volunteer family lawyers and Family Law Rules that punish those who do not make early and serious offers to settle through costs are further examples of efforts to improve the system, he says.

Equalization can’t be mischaracterized as support

Sun, 13 Jun 2021 12:28:25 GMT

Michael Stangarone | May 2016

Making the intentions behind the terms of a separation agreement clear from the start may save a divorced couple the trouble of further conflict and litigation down the road, says Toronto family lawyer Michael Stangarone .

Stangarone, a partner with MacDonald and Partners LLP , recently had success representing a man in court when he declared bankruptcy and sought to change the support terms of his separation agreement on a variation proceeding. But the $3.6 million they previously agreed upon was a blended amount and did not break down specifically what portion of the settlement represented support and what represented other payments.

“As family law lawyers we need to be alive to this issue,” says Stangarone. “A practice point is you need to separate it out.”

In contesting the variation proceeding, the wife and support recipient argued that the remaining unpaid amount of the $3.6 million, which exceeded $1 million, was not support for variation purposes under s. 17 of the Divorce Act but was support for enforcement purposes and for the purposes of being released in the bankruptcy according to s. 178 of the Bankruptcy and Insolvency Act.

She also argued that s. 17 of the Divorce Act wasn’t available to her former husband to vary the remaining balance owing because the deal was a blended settlement, and thus the "egg could not be unscrambled."

“You can’t have it both ways,” says Stangarone. “This case makes very clear you can’t, on one hand, take advantage of a government-funded service to enforce a payment characterized as support, and then tell the support payor that he can’t vary that same payment because it was never support to begin with.”

Support orders are meant to survive bankruptcy. But equalization settlements do not. The problem the court had to deal with in Korn v. Korn, 2016 ONSC 241 (CanLII) was that while the original settlement set out how the settlement funds should be paid over time, it stated that it was a settlement of all claims and didn’t break out how much of the final settlement was attributed to support and how much was on account of equalization (property division).

Had it been distinguished when the agreement was originally made, it could have eliminated any future discrepancy, says Stangarone, who was not the counsel who negotiated and drafted the original final settlement.

The problem became more complicated when the recipient took advantage of the Family Responsibility Office (FRO) to further her claim, while at the same time arguing that the payments did not constitute support for variation purposes, in turn attempting to leave the payor with no ability to vary the amount or stay enforcement of the amount.

“It is simply unacceptable to suggest that parties can effectively agree an amount that is not support can be enforceable by the FRO. To do so would allow parties to take advantage of the services of the FRO that are otherwise intended for support enforcement activities only, usurping or misdirecting the resources of the FRO. Private parties cannot expand the legislative mandate of the FRO to serve their own interests,” wrote Justice Wendy Matheson in the Ontario Superior Court decision in Korn.

FRO’s mandate is to enforce support orders which affords the FRO a great deal of power, including the power to garnish wages, take away passports, suspend drivers’ licenses and even land people in jail. Allowing recipients to transform amounts not otherwise support into support to avail themselves of the FRO enforcement measures is contrary to public policy, says Stangarone.

Another aspect of Korn was the question of jurisdiction.

“It’s a well reasoned decision,” Stangarone says. “It confirms that the court’s jurisdiction to vary support cannot be ousted.”