Author:  John P. Schuman
Email:  john.schuman@devrylaw.ca
Direct Line:  416-446-5080

CHANGES TO ONTARIO’S FAMILY LAW

Overview of the Changes

In response to public outrage about a few unusual incidents related to cases before the Family Courts, the Ontario Government has passed the Family Statute Amendment Act.  Only some parts of the Act have been declared in force.  The entire law will be in force at an unspecified date in 2009.  The makes three changes to Ontario Family Law.  First, it changes “restraining/non-harassment Orders” made in Family Court.  Second, it requires people seeking custody or access to file new court court documents requiring extensive information with the court.  Third, it make specific provision for courts to make orders controlling how people parent children in their care.

Tougher Restraining Orders

The changes to “restraining orders” are designed to “toughen up” the Orders and extend more protection to more people. These provisions are already in force.  Under the old provisions, it was only possible to get a “Family Law” restraining order against a person you had lived with for more than three years or with whom you have a child.  Under the new Act, you can get a restraining order against a person you lived with for any period of time (maybe even only a day) or with whom you have a child. The changes have also created standard court orders for restraining orders. They will set out exactly who is not allowed to communicate with whom, where a person is not allowed to go and if there will be any exceptions.  The clarity of these new orders is important because the Ontario Government removed the Provincial Offence for violating restraining orders.  The only way for the police to enforce a restraining order is by laying a charge under s. 127 of the Criminal Code.  The changes also include new provisions to allow courts to make orders limit contact between parents, or parties to the court case that are less than restraining orders and which will not be police enforceable.

New Extensive Court Documents for Custody Cases

Public outrage over the death of a child placed in the custody of a parent’s friend resulted in significant new requirements for documents to be filed with the court.  If you are thinking about starting a case for custody or access, you should do it now because the new requirements are onerous and will involve a lot of effort by both you and your lawyer.

The changes require all the parties to file a parenting affidavit that includes a lot of detail about the children and a detailed parenting plan.  If a party is not a parent, he or she will also have to file a criminal record check, provide every address where he or she lived since birth, and provide authorization for every children’s aid society in every jurisdiction where that person has ever lived to search their records and provide information to the court.

This will be a very labour intensive process.  It was designed to make sure that judge’s are not missing any information that may be important in making a custody or access order, but which the parties do not want the judge to know.

New Terms for Parenting Orders

The last change is not really much of a change at all.  Section 28(1) of the Children’s Law Reform Act has been amended to allow orders prohibiting:

• speaking disparagingly about the other parent in front of the child,
• changing a child’s residence, school or daycare with the other parent’s consent or a court order,
• the removal of a child from Ontario;
• one parent from withholding a child’s passport or health card,
• withholding consent documents to allow the parent to get information about a child and
• a parent from blocking contact between a child and another person.

The courts have made these orders as part of Custody Orders for a long time.  This change may simply be designed to assist parents in understanding that a judge can make these types of orders.

It is far from clear how judges will interpret these new provisions. Everyone involved with Family Law cases is interested in seeing how these new provisions will work in practice.

Section 7 Expenses: Extraordinary is in the Eye of the Judge
By Ken Nathens*
The Child Support Guidelines (“CSG”) have been in existence since 1997.    There are four stated
objectives for the CSG that are set out in Section 1 of the CSG: These are:
(a) to establish a fair standard of support for children that ensures that they continue to benefit
from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support
orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting
the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Notwithstanding its objectives and the length of time in existence, there is still uncertainty regarding
the interpretation and application of certain provisions of the CSG.

Section 7 of the CSG provides for the payment of “special or extraordinary expenses”. These are child
related expenses that a payor may be required to contribute to over and above the table amount of
child support. Section 7 provides a list of 6 possible special or extraordinary expenses.  Some, such as
child care expenses incurred by a working parent or post secondary education expenses, will almost
always be considered by a court to be special and extraordinary and therefore justify additional child
support payments.

Other child related expenses set out in the list may not result in additional child support payments
and are far more discretionary. Section 7(f) of the CSG provides that a payor may be expected to
contribute to “extraordinary expenses for extracurricular activities.” There is still uncertainty as to
what constitutes an “extraordinary expenses for an extracurricular activity” and when a judge may
order that additional child support be paid pursuant to this provision.

A child who partakes in a sport or activity at a high level, such as representative hockey, competitive
gymnastics, or horse jumping, will usually qualify for additional support to assist with the payment of
the activity. Competition at a high level is generally considered by the courts to be extraordinary, as
the activity is usually expensive, beyond the ability of the support recipient to pay on his or her own,
and requires that a child possess talent that is beyond the ordinary.  Not all children have the talent to participate in sports or activities at a high level. Many children play house league hockey, take non‐competitive dance or gymnastics, try out beginner karate, endure weekly piano lessons, or take weekly seasonal swim lessons.

Whether the parent in receipt of child
support is entitled to additional child support pursuant to section 7(f) of the CSG for these “ordinary”
activities depends on a number of factors that are discretionary in nature and are applied differently
by different judges. Some factors that a judge may consider when determining whether ordinary
activities are extraordinary for the purposes of Section 7(f) of the CSG include the following:

1. How much is the table amount of support being paid? The more the income of the recipient
parent, and/or the more the table amount of child support being paid, the less likely a judge
will consider children’s normal activities to be extraordinary as the cost of the activity may be
covered by the recipient parent without the requirement of additional financial assistance.

2. How many activities are being claimed? Whereas the court may order additional support for
one activity for a child, two or three activities claimed for the same child may be looked at as
asking for too much.

3. Were the activities now being claimed for enjoyed by the children prior to separation? If the
family has a pattern of the children participating in activities prior to separation, more likely a
judge will order the continuation of the activity post separation, and classify the activity as
being  “extraordinary”.

4. Do the children have special needs? An ordinary sporting activity may be considered
extraordinary for a child who is overweight or suffers from depression.

5. Will the child excel in the activity in the future? A child who shows particular talent and ability
in house league or regular dance class such that he or she may be in a representative league
or competition the following year may be entitled to additional financial support for the
activity, whereas a child with less potential may not be.

It is difficult for lawyers or litigants to predict when ordinary children’s activities may be considered
“extraordinary” pursuant to section 7 (f) of the CSG. Outcomes differ from court to court, and even
from judge to judge in the same court. In this respect, section 7(f) of the CSG has failed in its objective
to promote objectivity and consistency regarding the payment of additional child support for
extracurricular activities. It will be of interest to see whether the interpretation and application of
section 7(f) of the CSG by the courts becomes more consistent and predictable in the future.

* Ken Nathens is a partner with the law firm of Nathens, Siegel in Toronto, Ontario. He is a certified

specialist in family law.

SPOUSAL SUPPORT ISSUES

The brief notes below are only synopses and summaries of recently released decisions and as such should not be relied upon as an accurate description of the law contained in the actual judgments referred to. Always check the actual report before relying upon a comment set out below. Please check Caveat and Note About Sources for a description of the sources used to collect these cases.

I am gratefully indebted to Shelagh Mathers of Campbell & Mathers, in Picton, Ontario, for her assistance in compiling the cases found below. Shelagh has been in practice since 1988 and serves clients in Prince Edward County and surrounding areas. You can reach her by phone at (613)476-2366 and by fax at (613)476-6064. You can also e-mail Shelagh directly.

If you know of any case you think should be included to the listing above, please send me an e-mail with the information. Thanks, Joel Miller.

Bracklow v Bracklow, (March 25, 1999) S.C.C.

The parties married in 1989 after lived together for 4 years. Wife had 2 children from previous marriage. Her income was greater during the beginning of the relationship and the parties agreed that she would pay 2/3rds of the household costs. Later they shared costs and chores 50/50. In 1991 wife stopped working entirely due to psychiatric problems, and husband supported the family. The parties separated in 1992 and divorced in 1995.

Interim spousal support of $275/mo was increased to $400/mo in May 1994. Wife also receiving $787/mo disability benefits. Trial judge refused to order spousal support and found there was no express or implied agreement that either party would support the other, her health problems were not due to the marriage and she had experienced no economic hardship as a result of the marriage or its breakdown. Husband suggested that support continue until May 1996 and the judge so ordered. The BC Court of Appeal affirmed the trial decision. Wife’s appeal to the Supreme Court of Canada was allowed and the matter was sent back to the trial judge to assess the amount and duration of spousal support. While the early years of the relationship involved two relatively independent parties, by the time of separation their relationship was interdependent. They shared expenses and the husband supported her during the initial stages of her illness. The Court held that wife experienced economic hardship under the terms of the Divorce Act as a result of the separation; she demonstrated a need for support and husband had the means to pay support. The Court took into account the length of cohabitation and the fact that it was unlikely that she would work again. [For a more full discussion of this case and its significance, as well as a link to the SCC’s decision see: Does It Ever End?]

Back to Contents

Doe v Doe, (March 10, 1999) Ont Ct. Gen. Div.

The parties had been married for 20 years and had four children. After separation the parties entered into an agreement that provided for $3,000/mo spousal support, which was increased in July, 1987 to $4,500/mo

The husband retired from the partnership in his law firm in February 1996, remaining as an associate until the end of June 1998. He chose a withdrawal option which provided to him a significant lump sum, as opposed to plan that would have provided an income. The husband applied to reduce support on the basis that he no longer had the ability to pay. His application was dismissed. Retirement alone, which was foreseeable, was not found in this case to be a material change in his circumstances. The court found that he had not demonstrated a material change and he had the ability to pay support.

Back to Contents

Van Doorn v Van Doorn, (March 16, 1999) Alberta Q.B.

The parties had been married for 13 years. The wife had care of the two children. They entered into a separation agreement in 1989 that preserved the wife’s right to spousal support.

In 1998 the wife claimed spousal support; she had multiple sclerosis which had been exacerbated by a car accident. As well, she had lost money in a capital investment and had declared bankruptcy. She was not employable. Her income was $3,100 in disability payments. The husband denied an obligation, stating that her need was not related to the marriage. He earned $100,000 per year. The Court ordered spousal support of $1,000 per month, citing the entitlement preserved in the separation agreement and also section 15 of the Divorce Act. The court found that the wife had been disadvantaged as a result of the marriage breakdown and was unlikely to become self-sufficient.

Back to Contents

Holmes v Holmes, (March 17, 1999) Alberta Queen’s Bench

In December 1995 a divorce judgment provided for three years of spousal support at $1,725/mo. The parties had been married for almost 22 years and had one child for which the wife continued to provide care . After separation the wife enrolled in school and in September 1998 was enrolled in a marketing program. She applied to the court to extend her entitlement to receive spousal support as she hoped to be finished to schooling in May 1999. The husband took the position that the wife was deliberately prolonging her schooling and was not really motivated to become self-sufficient.

The Court permitted spousal support to continue, noting that the wife was not economically self-sufficient. The fact that the wife had received over $340,000 in property from matrimonial assets was considered. The husband had the ability to pay and the wife had demonstrated need. Spousal support was ordered for six months beyond the three years provided for in the judgment to be reviewed after that six month period.

Back to Contents

Friday, December 17, 2010

The Ontario Family Law Ruling “Everyone” Is Talking About

While Mr. Justice Joseph Quinn’s November 29, 2010 ruling in Bruni v. Bruni, 2010 ONSC 6568 (CanLII) goes strangely unmentioned by name in Kirk Makin’s extensive Globe and Mail report today, In family court, a judge turns to ridicule to defuse the rage, I confess the case was nonetheless relatively easy to find online.

It merely required a search of the CanLii database for the term “dickhead.”

(There was only one result)

Leaving Justice Quinn’s many colourful turns of phrase aside for the moment, the case is primarily important as a rare example of an Ontario decision in which a spouse’s misconduct – in this case parental alienation – has been regarded as so egregious as to essentially disqualify her from entitlement to spousal support.

The excerpts from the ruling, below, set out the Court’s rationale for bypassing the Spousal Support Advisory Guidelines and limiting its spousal support award to $1.00 monthly:

9. Spousal Support

…(o) amount and duration under the SSAGs

[202] Larry’s projected annual income for 2010 is $81,000 (rounded). Using Catherine’s income as set out in her sworn financial statement and applying the with-child-support formula under the SSAGs, the monthly spousal support range is: $98(low); $466(mid); and $863(high). The minimum duration under the SSAGs is 5.5 years and the maximum is 11 years, both measured from the date of separation. The minimum period of 5.5 is generally what I thought would be appropriate (I was considering five years). Had Larry been earning $81,000 annually since separation, I would have selected the mid-range support figure of $466, preferring to be conservative in the circumstances of this case,[42] and require that it be paid for the first year after separation, declining to $400 in the second year, $350 in the third year, $300 in the fourth, $250 in the fifth and $200 in the remnant year.[43]As Larry’s ability to pay did not arise until the fourth year after separation, I order (but still provisionally) monthly spousal support of $300 in 2010, $250 in 2011 and $200 for the first six months of 2012.[44]

(p) spousal conduct

[203] Notwithstanding the SSAGs, s. 33(10) of the Family Law Act gives a discretion to the court to consider spousal conduct in arriving at the amount of support:

33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[204] Section 33(10) contains a number of key words and phrases, but they are straightforward in meaning and do not present any semantic tricks.

[205] To begin with, “course of conduct” requires something more than an isolated incident.

[206] The words “unconscionable”, “obvious”, “gross,” “repudiation” and “relationship” have meanings in everyday parlance consistent with their use in law. They are defined in The New Shorter Oxford English Dictionary to include the following: “unconscionable” – “showing no regard for conscience; not in accordance with what is right or reasonable”;[45] “obvious” – “plain and evident to the mind; perfectly clear or manifest; such as common sense might suggest”; “gross” – “flagrant, glaring”; “repudiation” – “rejection, disownment, disavowal”; “relationship” – “an emotional association between two people; the state of being related” and “related” means “connected by blood or marriage.”

[207] Section 33(10) provides clear guidance as to when the court may consider the typically-taboo topic of spousal conduct. There is no need to formulate a test.[46] Section 33(10) contains its own test; and it will be a rare case that passes the test.

[208] Section 33(10) does not restrict “a course of conduct” to pre-separation conduct. Also, “relationship,” in my opinion, includes the relationship of spouses as co-parents. The relationship of parent and child is inextricably linked to that of husband and wife. Accordingly, I am permitted to consider the post-separation alienation that Catherine created between Taylor and Larry in determining the amount of spousal support to which Catherine is entitled.

[209] The parental alienation[47] in this case reflects an intent by Catherine to destroy the relationship between Taylor and Larry; it is shocking conduct. It also amounts to a hideous repudiation of the relationship between Catherine and Larry as co-parents of Taylor. The harm here probably is irreparable. Certainly, it is extremely serious at best. How could such conduct not satisfy the requirements of s. 33(10), stringent as they are?

(q) final conclusion on spousal support

[210] While Larry’s access-conduct has largely reflected nothing more than inept parenting, Catherine’s parental-alienation behaviour has been evil. Is there a remedy?

[211] Dollars cannot replace the father-daughter relationship that Catherine has destroyed. However, in the circumstances of this case, justice has only a Hobson’s choice. Catherine’s alienation of Taylor and Larry must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support.

[212] Accordingly, the spousal support to which Catherine would otherwise be entitled shall be reduced to one dollar monthly.

The ruling’s caustic tone is exemplified by a selection of Mr. Justice Quinn’s footnotes:

[2] At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it?” Her I-just-won-a-lottery smile implied the answer that I expected.

[3] I am prepared to certify a class action for the return of all wedding gifts.

[4] It is likely that, in the period 2004-2006, Larry was having one or more extramarital affairs. Interestingly, Larry’s father was married five times, in addition to going through several relationships. Perhaps there is an infidelity gene…

[7] The courtroom energy level in a custody/access dispute spikes quickly when there is evidence that one of the parents has a Hells Angels branch in her family tree. Certainly, my posture improved. Catherine’s niece is engaged to a member of the Hells Angels. I take judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organization (and of the fact that the niece has made a poor choice)…

[21] A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.

[22] When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.

[23] In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.

[24] These do not strike me as the statements of someone who is concerned about precipitating a Hells Angels house call.

[25] I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate, in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.

[26] The New Shorter Oxford English Dictionary defines “dickhead” as “a stupid person.” That would not have been my first guess.

[27] And all of these prohibitions by Catherine are taking place with a trial date already inscribed on her kitchen calendar.

The complete ruling is here.

– Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Courtesy of

John P. Schuman C.S., Child and Family Law

These cases have been “officially reported”, which means the decisions have not just been released to the parties, but have been published so that other lawyers can use them as precedents.

Below are a list of  cases, with a brief description.  Click on the case name to read the entire decision.

• Aliyev v. Aliyev  – high conflict case that “imputed” income to a husband who was being difficult regarding what he earned.  The case also discusses the importance of stabilizing the family situation after separation.  John also prevented the husband from selling the home out from under the wife and children.
• Bott v. Bott, after winning an arbitration over child support, John had the courts enforce that child support.  The father refused to pay any support and asked the court, several times, to allow him to pay no support for his children.  In this decisions, Justice McGee agreed with John that the court should not even listen to the father until he tried to pay support.
• CCAST v. R.D.S. – in this child protection appeal case, John prevented a children’s aid society from taking a three year old child away from the foster parent, with whom he had lived since birth, and sending him to an uncertain fate to live with relatives he had never met in Brazil.  This case was also reported in the national media.
• CAS (Oxford) v. W.T.C. – in this precedent setting case before the Ontario Court of Appeal, John successfully argued that systemic delays in the hearing of a parent’s appeal in a children’s aid society case amounted to a breach of her rights under the Canadian Charter of Rights and Freedoms.  The Court also accepted John’s argument that when hearing an appeal, it needed to know the status of the child and the parent at the time of the hearing of the appeal, not just a the time of trial.  The Court said it was the Children’s Aid Society’s obligation to put that information before the court.
• C. (K. L.) v. H. (T. J.)  – this is another child support case in which John caught the father trying to hide his true income to get out of paying child support.
• C. (K. L.) v. H. (T. J.) (re costs) – this decision follows from the one above. The judge ordered the father to pay of the John’s legal fees for John’s client.
• Hanna v. Yun – in this decision, John successful had a self-employed contract pay child support based on an income more than $130,000 higher than the support payer admitted he earned.  John fathered evidence to prove the payor’s income was higher than he admitted so that the judge would base child support on John’s calculations rather the husband’s inadequate disclosure.
• D.S. v. CAST – in this case before the Child and Family Services Review Board, John stopped a children’s aid society from refusing to allow a couple to adopt their own niece.
• Durham CAS v. V.C. in this child protection case dealing with the Charter rights of autistic children and their parents, John successfully argued that the Charter of Rights case should be heard in Family Court as part of the child protection case.
• Kroupis-Yanovski v. Yanovski  – in this important appeal case, John successfully argued that parties who chose to use family arbitration can also choose what procedure that they want that arbitration to follow.  Parties are free to choose an arbitration procedure that suits their needs (and wallet) even if that procedure is very different from court procedure.
• K. v. Leo Baeck Day School  – in this education law case, John stopped a private school from expelling a child because he had been the victim of bullying.
• Lawson v. Lawson – in this import Ontario Court of Appeal case, John was one of the successful lawyers arguing several difficult family law issues.
• Martinez v. Basail – John successful argued that a divorce granted in Cuba should be recognized in Canada, even though neither spouse lived in Cuba at the time of the divorce. This case set the stage for many cases that followed on recognizing foreign divorced and marriages.
• Sambasivam v. Pulendrarajah – this is the case in which Justice Sherr commented : “Mr. Schuman’s conduct in this case is an example of what lawyers are supposed to do in difficult cases.”
• R. v. E.B.J. this old education case dealt with bullying.  This decision  in that case was a precent setting decision on judicial review.