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Family Law News: Family Law Seminar

By Kathleen Bingham and Felicity Sattan

December 2020

The Hamilton Law Association’s Family Law Subcommittee hosted the Family Law Seminar on October 29, 2020. The Program Chair, Kathleen Bingham, and Planning Committee members Imran Kamal, Whitney Smith, and Amy Katz put together a fantastic virtual seminar on a range of family law issues.

For the first presentation, Hamilton family lawyers provided informative highlights about recent family law cases.

Case Highlighter

Chase v. Chase 2020 ONSC 5083

Renee Roy provided a summary of a COVID-19 case where the child’s return to school in September 2020 was in dispute due to concerns surrounding the pandemic.

Justice Himel reviewed the circumstances of both the Mother and Father’s households and found there was no evidence to suggest that the child or any family members would be at risk if the child attended school in-person. Justice Himel reiterated that the Ontario government and the medical experts deemed it safe for children to return to school. The child’s mental health and social needs were an important consideration. Further, the Mother was an essential worker and would not be available to facilitate remote learning.

Michel v Graydon 2020 SCC 24

Philip Dehm discussed the recent unanimous Supreme Court of Canada decision which has provided clarity on the law regarding retroactive child support orders.

The parties were in a common law relationship and had one child together. After the relationship ended, they entered into a consent order in 2001 for child support based on the Father’s stated annual income. His stated annual income was actually incorrect and lower than his true annual income. The Father did not provide financial disclosure. In 2012, the child was no longer eligible for child support and support was thereby terminated. The Mother later discovered that the Father had understated his income for nearly each year over the period of 11 years from 2001 to 2012. In 2015, the Mother brought an application to vary the previous consent order made in 2001 to seek an increase in child support. By this time, the child was an adult.

The Supreme Court considered the seminal case of D.B.S. v. S.R.G. 2006 SCC 37. In accordance with Section 15(1) of the Divorce Act, a recipient cannot seek an originating child support order after the child no longer falls under the definition of “a child of the marriage”, however, in this case, the Mother made an application to vary the consent order which was distinguishable from an originating process. The Supreme Court considered the statutory interpretation of the Divorce Act and Parliament’s intention of child support being the right of the child.

The Supreme Court’s conclusions were that the core principles of child support should be taken into account. The legislation does not aim to incentivize a payor to withhold disclosure in order to “wait out the clock” and escape their financial responsibility on a technicality. As in D.B.S., the blameworthiness of the payor is a central factor to consider.

The Supreme Court reinstated the trial judge’s decision, and the Mother was award $23,000.00 in retroactive child support.

Mr. Dehm reminded the Seminar attendees to look out for the Supreme Court’s decision in Colucci v. Colucci in the coming weeks regarding the issue of retroactive child support.

Climans v. Latner 2020 ONCA 554

Michaela Newman discussed a recent Court of Appeal decision that has received quite a bit of media attention.

The three issues on appeal were:

The meaning of “common-law spouse” as defined under Section 29 of the Family Law Act

The application of the Rule of 65 Costs

The parties were in a common law relationship for 14 years. The recipient, Lisa Climans, was 52 years of age. The Payor, Michael Latner, was a wealthy business man in his early 60s. The parties maintained separate residences throughout the relationship. They never married and had no children together. There were no joint bank accounts or jointly owned properties. The parties did live together at Mr. Latner’s Muskoka cottage in the summer months and they travelled to Florida together each year. Mr. Latner financially supported Ms. Climans by paying her home expenses, providing her with cash gifts of $3000 to $5000 per month and access to his credit cards.

The Court of Appeal found the parties were indeed common-law spouses and upheld the trial decision. The Court of Appeal held that the trial judge’s decision was the correct interpretation of the law - a lack of a shared residence is not determinative of issue of cohabitation and can result in significant spousal support awards.

The Court of Appeal found the trial judge erred with respect to the Rule of 65. For the Rule of 65 to apply, the parties would have had to begin cohabiting from the moment they met 14 years ago. The spousal support entitlement was adjusted from indefinite to a fixed period of 10 years. A reduction in costs was ordered.

Jamieson v. Jamieson 2020 ONSC 5173

Sean Heeley provided a summary of a case where the Wife was seeking compensatory and non-compensatory spousal support at an uncontested trial.

The parties’ 29-year marriage ended in 2014. During the marriage, the Wife was the primary caregiver to the child, who is now an adult. The Husband, a self-employed businessman, never paid child support. The Wife argued that there had been a post-separation increase in the Husband’s income. The Husband refused to provide financial disclosure.

Justice Kurz found that the Husband was likely avoiding his disclosure obligation because he felt the more that the Wife knew, the more she could prove to be his income and assets, therefore it is reasonable to impute an income of $250,000 per year to the Husband. Justice Kurz also found that this was an appropriate case for a lump sum payment of $300,000 to satisfy a spousal support award.

Kawartha-Haliburton CAS v. M.W. 2019 ONCA 316

Mona Anis discussed the Court of Appeal’s decision in a child protection case involving six Indigenous children. The Kawartha-Haliburton CAS brought a motion for summary judgement seeking a declaration of Crown wardship and no access to the Mother. The Mother opposed the no-access provision.

After the motion judge’s decision was released in 2017, the new Child, Youth and Family Services Act took effect in April 2018. The Mother appealed the motion judge’s decision to the Divisional Court and was later granted leave to appeal to the Court of Appeal. The Mother argued that the Divisional Court erred by changing the test for summary judgement in child protection matters.

The Court of Appeal outlined five factors for the proper approach to summary judgement in child protection proceedings:

  • The Hyrniak principles of fairness must be applied recognizing the distinct features of a child protection proceeding and the objectives of the children’s best interests.
  • The burden of proof is on the moving party to establish that there is no genuine issue for trial.
  • No weight should be given to evidence that would be inadmissible at trial.
  • Judicial assistance must be provided to self-represented litigants.
  • The special considerations for Indigenous children must be part of every decision involving Indigenous children.

J.N. v. A.S. 2020 ONSC 5292

Virginia Mendes de Costa provided a summary of a recent parenting decision about enrolling a child in school after the onset of the COVID-19 pandemic.

The parties separated when the child was six (6) months of age. The child is now 4 years old and scheduled to attend Junior Kindergarten. The Mother was seeking an order for the child to attend private school in-person as the parties had previously agreed prior to the onset of the pandemic. Due to concerns about COVID-19, the Father was seeking that the child participate in online learning.

The Father argued the child had previous health issues, however the Mother confirmed that the child had a health condition two years ago and provided a doctor’s letter indicating that the child was not at a higher risk of infection by attending school than any other child.

The Father argued that he personally had health issues and provided information from the American Asthma Association and copies of two prescriptions filled in August 2020. The Court held this was not sufficient evidence and the Husband should have provided a medical report.

The Court also considered whether Junior Kindergarten, a play-based program, can be effectively taught to a child sitting in front of a computer. In addition, in-person school is the only option to address the child’s social and psychological needs as she is an only child. 

Kyle v. Atwill 2020 ONCA 476

Catarina Ferreira provided a summary of the Court of Appeal’s decision on the issue of whether a plea to set aside a marriage contract is subject to a limitation period.

The parties entered into a marriage contract immediately before their marriage, which waived any entitlement to spousal support and provided that the parties would be separate as to property. When the parties separated, the Husband commenced family law proceedings seeking equalization and spousal support. The Wife sought to rely on the marriage contract and the Husband asked the Court to set aside the marriage contract on the basis that he had signed it without financial disclosure, under duress, without legal advice and under a clear power imbalance.

More than two years had passed since the parties separated. In deciding the summary judgement motion, the motion judge found that the recission of a marriage contract constitutes a “claim” under the Limitations Act and is subject to the two-year limitation period under Section 4 of the Act, therefore the Husband’s claim was time-barred.

The Court of Appeal found that the motion judge erred, and the Husband was in fact not time-barred. The Husband’s plea for recission of the marriage contract seeks a declaration where no consequential relief is sought and under Section 16(1)(a) of the Limitations Act, no limitation period applies to that pleading.

The Husband’s claim for equalization is subject to the six-year period pursuant to Section 7(3)(b) of the Family Law Act and his claim for spousal support is not subject to a limitation period.

Children’s Aid Society of Toronto v. J.G. 2020 O.J. No. 2822

Martha Tweedie rounded out the case highlighter presentation with a child protection case about the new test for access as it applies to children in extended care.

The Court of Appeal considered whether the test for access under the new Child, Youth and Family Services Act (CYFSA) has changed the meaning of “beneficial and meaningful” relationship. The old legislation, the Child and Family Services Act, required that an applicant establish that the relationship is “beneficial and meaningful” to the child and was more limited as meaning a “significantly advantageous” relationship. Under the new CYFSA, the interpretation of “beneficial and meaningful” was expanded to include the more broad best interests’ test.

The Court of Appeal cited the Supreme Court of Canada decision in Bell ExpressVu Limited Partnership v. Rex 2002 SCC 42, where it was held that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The Court noted that the new legislation achieved the objectives of reflecting the realities of families and changing the test for access to Crown wards. The new best interests’ test requires the Court to conduct a holistic and comprehensive analysis.

The last two presentations at the seminar focused on the changes in legislation that come our way in 2021.

Important changes regarding child welfare for Indigenous children

First, Rebecca Hammond and Imran Kamal’s presentation focused on phase 2 of an Act Respecting First Nations, Inuit and Metis Children, Youth and Families, which comes into force on January 1, 2021 (phase 1 came into force January 1, 2020). This Federal legislation is paramount to our provincial Child, Youth and Family Services Act and could, as it is designed, mean that there will be the federal law, the provincial law and one or more Indigenous laws that will be relevant to child welfare determinations.

The goal is to maintain children in their family unit and the legislation includes positive obligations on Society to make reasonable efforts to keep them in their communities. To this end, the Act Respecting First Nations, Inuit and Metis Children, Youth and Families includes minimum standards (sections 9 to 17). All sections prevail over provincial law, and sections 10 through 15 prevail over Indigenous laws. Ways to accomplish the goal include customary care, early Indigenous Dispute Resolution and the importance of connecting clients with relevant supports.

For us, as practitioners, Rebecca Hammond recommended five best practices to become an effective ally to our Indigenous clients, this includes:

  • Building a relationship with the communities you are serving.
  • Educate yourself.
  • Listen.
  • Approach interactions with a trauma informed lens, which includes intergenerational trauma.
  • Understand your limitations and bring in the experts and supports that your client needs and wants.

The New Divorce Act

Finally, Justice Coats delivered a presentation about the amended Divorce Act, which comes into force March 1, 2021. This will amend the Divorce Act to:

  • Replace “custody” and “access” with parenting terms.
  • Provide a non-exhaustive list of criteria with respect to the best interest of the child.
  • Create a duty for parties and their lawyers to encourage and promote the use of alternative dispute resolution processes.
  • Include new measures to assist the Court to address family violence.
  • Establish a framework for the determination of relocation (mobility).

There are important transitional provisions that we should be aware of as we transition into the new framework (sections 32, 34 and 35).

Hamilton Tips

In conclusion, here are a few tips from our local Bench which are important to keep in mind as we continue in 2021 with virtual court appearances:

  • Briefs should be short and to the point. Remember that the practice directions and notices to the profession include page limits (same goes for motions).
  • Appear in virtual court as you would in “in person” court and instruct your clients to do the same. This includes:
  • Appropriate dress;
  • Do not drink or eat during appearances;
  • All microphones should be muted when you are not speaking;
  • Don’t walk around during appearances;
  • Try to minimize background noise;
  • Kids should not be present;
  • Identify yourself by your full name on the zoom platform; and
  • If possible, cameras should remain on for the duration of the appearance.
  • Online filing through the Family Submissions Portal includes a five-day buffer period. To ensure the Judges have the material when filing electronically, try your best to file something at least five days prior to the deadline.
  • Try not to ask for adjournments. The Court time that is available is really precious.

2020 has been an unexpected and challenging year, but hopefully it has also included more time spent with family, new hobbies, and other special moments. As we move into the New Year, all the best to you and your loved ones: stay safe and take care of each other.

Kathleen Bingham practices Family Law at Bingham Law. She can be reached at:

Bingham Law

25 Main Street West, Suite 601

Hamilton, Ontario

L8P 1H1

Tel: (905) 297-4767

Email: kathleen@binghamlaw.ca

 

Felicity Sattan practices Family Law with Jaskot Family Law Barristers LLP. She can be reached at:

Jaskot Family Law Barristers LLP

3310 South Service Road, Suite 203

Burlington, ON

L7N 3M6

Tel: 905-634-3155

Email: felicity@jaskotfamilylaw.ca