The claims:

The mother made 13 tort claims against the husband, including:

• Physical and sexual assault,
• Forcibly confining her in a hospital against her will, and
• Sharing intimate photos of her with family and friends, violating her privacy.

She sought $325,000 in general and aggravated damages.

The Findings

The court determined that the father had committed battery, assault, and the intentional infliction of mental suffering. His testimony was deemed not credible, and his deliberate lies further undermined his position. The court emphasized that the witness stand cannot be a venue to cause further harm to the victim.

The Decision

In its ruling, the court acknowledged the severe harm caused to the Wife and the need to denounce and deter such behavior. The compensatory and aggravated damages of $175,000 were awarded for the physical, emotional, and psychological harm inflicted. An additional $25,000 in punitive damages was ordered, reflecting the court’s condemnation of the Husband’s actions and his misuse of the judicial process.

Significance

This decision reinforces the recognition of IPV as a pervasive social issue and underscores the viability of pursuing civil tort claims for IPV within family law proceedings. By awarding punitive damages, the court sent a strong message that deliberate lies and efforts to perpetuate harm through litigation will not be tolerated.

This case serves as a stark reminder of the hidden realities that can underlie seemingly “storybook” relationships. Beneath the surface lay a household marked by abuse, violence, intimidation, and fear.

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In 2018, the Federal government introduced Bill C-78 (the “Bill”), which proposed significant changes to the law governing post-divorce parenting, specifically to the Divorce Act.[i]  These are the first amendments, with the exception of the Child Support Guidelines, to the Divorce Act since it came into force in 1985. The long awaited amendments modernize and clarify family law with a more child-focused approach, which include emphasizing the importance of alternative dispute resolution processes, recognizing the impact of parental conflict on children, and a much needed update in family law language.  

One of the more notable changes is the shift in the language. The use of terms such as “custody” and “access” created a “winner” and “loser” in parenting disputes. This in turn increased conflict between parents, which quickly overshadowed the best interests of the child. Needless to say, the language did not encourage settlement discussions when one parent was left feeling that they were “losing”.

Although many family law lawyers and judges have seized the use of “custody” and “access”, the Bill formally replaces the archaic language with the child-centric terminology of “parenting time” and “parental decision-making”. Parental decision-making responsibility is defined as the responsibility for making “significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion and spirituality”.[ii] Parenting time is the time that a child of the marriage spends in the care of  either spouse or a person who stands in the place of a parent, such as a stepparent, whether or not the child is physically with that person during that entire time.[iii] The Bill places an onus on parents to work together and create a “parenting plan” on how to share decision making responsibility and time, but where parents cannot agree, a judge will make a parenting order.[iv] These changes call on the parties to work together and create a plan for their family post separation.  

Additionally, the Bill places considerable emphasis on the use of alternative dispute resolution processes. Section 7.6 of the Divorce Act, creates a positive obligation on parents and counsel to certify that they are aware of and understand the duties to explore dispute resolution processes outside of court to reduce parental conflict and protect children from harm.[v] The required certification is embedded within the original pleadings (i.e. the Form 8 Application). The Ontario courts have been provided with the power to direct parties to attend out of court family dispute resolution, subject to the provincial legislation.[vi] Family dispute resolution processes may include mediation and/or arbitration. These dispute resolution processes may not always be appropriate in every matter, for example, if there is a significant power imbalance between the parties, or a history of partner abuse.

Other important changes in the Bill include:

1. Establishing a non-exhaustive list of factors for the determination of the “best interests of the child”, including consideration of the views and preferences of the child and the willingness of each parent to support the child’s relationship to the other parent;
2. Measures to assist the courts in addressing family violence in the context of the best interests of the child in parenting disputes such as defining what constitutes “family violence”, and to make protection of the safety and well-being of the child a “primary consideration””; and 
3. Establishing a new framework for dealing with the relocation of a child (or parent).[vii]

What about Provincial Legislation?  

Provinces, such as British Columbia and Nova Scotia, have already incorporated some of the above-mentioned changes to language and an overall child-focused approach into their provincial legislation. In November 2020, Ontario introduced Bill 207, the Moving Ontario Family Forward Act, 2020, which incorporates a majority of the Federal amendments to the Children’s Law Reform Act. This bill came into force on March 1, 2021.

This legislation introduced many amendments, including jurisdiction of parenting issues across provinces and territories and efforts to become more in line with international law such the Hague Convention. The amendments are a concerted effort on the part of the provincial government to have family law legislation reflect evolving Canadian society.

If you have any questions how these legislative changes may impact your family law matter, please contact our family law department.

[i]Divorce Act, RSC 1985, c 3 (2nd Supp).

[ii] Section 2(1)

[iii]Ibid.

[iv]Section 16.1(1).

[v]Sections 7.2, 7.3, and 7.6.

[vi]Section 16.1(6).

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Equalization is the process of dividing assets to help address the financial disparity between two spouses after the breakdown of their marriage. This process consists of calculating each spouse’s Net Family Property value (“NFP”), which is all assets owned on the date of separation, including assets owed solely by one spouse, minus any liabilities as of the date of separation. Equalization is premised on the understanding that all assets built during the marriage were built together and therefore they should be equally divided. But what happens when an asset is acquired by one spouse as a gift or inheritance?

As set out in section 4 (2) of the Family Law Act, R.S.O. 1990, c.F. (“FLA”), there are some assets that may be excluded from a spouse’s NFP. If the purpose of equalization is to divide the assets built together during the marriage, then gift or inheritance do not form part of this notion. Gifts and inheritances are an exception to the rule of equalization. The value of gifts and inheritances that a spouse acquires during the marriage may be excluded from their NFP and not equalized. However, there are conditions to this exception.

In order for an asset to qualify as an exclusion, not only does it need to exist on the date of separation, but it must also be: 1) an asset other than the matrimonial home; 2) acquired by gift or inheritance; 3) from a third party; and 4) received after the date of the marriage.

It is important to note that, section 4(3) of the FLA, superficially provides that the spouse seeking the exclusion bares the responsibility of proving that the asset should be excluded, which includes proving that it existed on the date of separation, the value of the asset, and that it was a gift or inheritance received during the marriage.

Notwithstanding the above, gifts or inheritances received before the marriage are treated much differently. A gift or inheritance owned on the date of marriage is deducted from a spouse’s NFP even if that asset does not exist on the date the marriage ended. Though the value of the asset increases from the date of marriage to the date of separation, the increase in value will be divided.

Another consideration to make is that if a gift that existed on the date of marriage generates income, such as a rental property, then the income is never excluded or deducted. But, income generated from a property gifted from a third party during the marriage, may be excluded from the spouse’s NFP, if the donor or testator expressly state that the income is to be excluded. By way of example, where a spouse acquires property during the marriage and the property is not the matrimonial home, then the entire value of the gift, including the capital appreciation will be excluded.

Lastly, parties ought to be mindful of the way gifted or inherited property is handled. For instance, if a spouse deposits the gifted asset into a joint account it loses its exclusionary character to the extent that the half interest is presumed to be gifted to the other spouse. Though the courts have been fairly inconsistent when determining whether an exclusion should be applied in this case.

The law around equalizing gifts and inheritances is complicated and fact specific. Many considerations must be made when equalizing an asset. Questions about how to protect your gifted or inherited asset or whether or not it should be equalized are best addressed by seeking legal advice from family law counsel.
​

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If you have been involved in a custody or access dispute you are no stranger to the term “best interests of the child”. In the unfortunate event that you are forced to deal with a custody or access fight it is important to take a moment to turn your mind to what a judge or decision maker may consider when determining what is in the best interests of your child(ren). 
​
Both the Children’s Law Reform Act and the Divorce Act make reference to the best interests of the child. Canada’s Supreme Court has confirmed that when making a determination of custody and/or access, this is the singular test that is to be applied. The court has also ruled that “the best interests of the child” is an all encompassing concept, including the physical, emotional, economic, psychological moral and intellectual well-being of the child.”

All that said, how the determination of “the best interests of the child” is determined is as fluid and varied as the number of parenting disputes that it is applied to. It is through case law that we have come to understand that judges will approach the issue of custody not “from the perspective of which parent should have custody, but rather from the perspective of the child’s needs and what arrangement will best meet those needs.” 

Section 24 of the Children’s Law Reform Act sets out the factors that are to be considered when assessing the best interests of the child. Among others, these factors include: the views and preferences of the child (where this can reasonably be ascertained), the length of time the child has lived in a stable home environment, the plans proposed for the care and upbringing of the child as well as the permanence and stability of the family unit the child will live. 

These factors, as well as the others contained within the legislation, must be considered by the court when determining a custody and access dispute and will not necessarily be weighted equally. The particular facts of the case unilaterally govern. Courts have provided some insight and in depth analysis as they relate to the factors. By way of example, courts have found it appropriate to ask “on a day to day basis, which parent would the child miss most” when analyzing the parent’s ties with the child, a question that would likely be considered when dealing with the questions of Love, Affection and Emotional Ties. 

Another legislative concept that will often be applied by courts is the Maximum Contact Principle which requires a court to maximize the contact a child has with each parent. This principle is referenced in Section 16(10) of the Divorce Act which states: 

…the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 

Another factor that courts may consider is a child’s siblings; generally speaking, courts will be reluctant to separate siblings in absence of a compelling reason to do so. Courts have taken the following position as it relates to their apprehension over the separation of siblings: 

While there is no presumption of law to this effect, the best interests of children are, in many cases, served by a custody situation that avoids splitting siblings between parents….However, splitting siblings may be appropriate in cases where there is a successful de facto situation and the children are settled and happy in the homes in which they live.

Additionally, a court will look at whether the child(ren)’s relationship with the parent’s new partners, blood ties and whether ordering a Section 30 assessment would be useful. A Section 30 Assessment is when a court appoints an individual with technical or professional skills to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. Section 30 assessments are not routine but will be ordered when there are serious clinical issues such as a psychological issue with respect to the child that requires expert assistance. A Section 30 Assessment can be distinguished from a Voice of the Child Report which allows a child to be heard during a custody proceeding by providing information about what the child thinks. This report is different from a Section 30 in that the professional writing the report does not provide his or her opinion. 

Despite the apparent simplicity involved in applying a singular test to the determination of custody and access, the concept itself is multifaceted and requires an in-depth analysis of numerous factors. Seeking advice from experienced family law counsel is always advisable when faced with a custody and access dispute. 

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The separation process is difficult and often times emotionally driven. These emotions are frequently amplified when issues of custody and access are at play. Most parents find the notion of having a third party determine when, where, how often and if they will be permitted to spend time with their own child(ren) a difficult concept to accept.

The federal Divorce Act, requires the court to consider “only the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child”. Although numerous sections of the Divorce Act makes reference to the issue of access, the singular test that a court will apply when tasked with making an order for custody and access under federal legislation is the “best interests of the child”.

Section 24(1) of the provincial Children’s Law Reform Act, R.S.O. 1990, c.C.12 set out the factors that the court is to consider when making a determination in regards to the best interests of the child. These factors include:

• the love, affection and emotional ties between the child and,
  • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
  • other members of the child’s family who reside with the child, and
  • persons involved in the child’s care and upbringing;
• the child’s view and preferences, if they can reasonably be ascertained;
• the length of time the child has lived in a stable home environment;
• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
• the permanence and stability of the family unit with which it is proposed the child will live;
• the ability of each person applying for custody of or access to the child to act as a parent; and
• any familiar relationship between the child and each person who is a party to the application.

Both the Divorce Act and the Children’s Law Reform Act provide the court with the jurisdiction to impose such terms, conditions or restrictions to custody and access orders that it may deem appropriate. The court will make determinations related to custody and access on a case by case basis taking numerous factors into consideration. Some of the factors that will be considered include: the age of the child(ren), the child(ren)’s activities, the child(ren)’s relationship with the person requesting access, the child(ren)’s health, parenting capabilities of the access parent, and the relationship between the custodial parent and access parent. This list is non-exhaustive. Once a court determines that making an order for access is in the best interests of a child(ren) the court must then determine what the terms of access should be.

Case law relating to the issue of access is vast, fact driven and often complex. When a parent is lacking parenting skills a court may find that it is not in the best interests of the child(ren) for access to be ordered. Physical distance between the parents may also impact the frequency and duration of access visits. In some instances courts have found that it may not be in the best interests of a young child(ren) to be subjected to frequent long distance travel.

The Divorce Act creates a presumption that children will benefit from maximum contact with both parents, however, this is certainly no guarantee that a court will order shared custody in every case.

When seeking an order for custody and/or access it is important to understand that there is no “standard” or cookie cutter arrangement and the court will consider numerous factors and make an order based on the particular facts of the case. It is therefore critically important to seek legal advice from experienced family law counsel when dealing with custody and/or access disputes.

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Ontario is a no-fault divorce jurisdiction in which separating spouses are governed by the Family Law Act (“FLA”) when it comes to property division. Absent a domestic contract, separating spouses sever property ties with one another through a process known as the Equalization of Net Family Properties. This process is governed by Section 5(1) of the FLA which states:

When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is lesser of the two net family properties is entitled to one-half the difference between them.

When calculating the quantum of an equalization payment, each party will calculate the net wealth they have accumulated during the marriage to determine their respective “Net Family Property” (NFP) values. They then calculate the difference between their NFPs and the spouse with the higher NFP will pay “one-half the difference between them” to the spouse with the lower NFP.

It is important to note that this is a general outline of the equalization process; a process which often times becomes more difficult depending on the debts and assets involved. The calculations can become more complex as a result of assets that are considered “exceptions”, the value of which are not included when calculating one’s NFP value. By way of singular example, the value of property that was received as a gift from a third party (with the exception of a matrimonial home) will not be shared.

The intention of the FLA is to ensure that spouses walk away from a marriage with a financial equilibrium, so to speak. Notwithstanding the intended mathematical determination described above, the law recognizes that situations will occasionally arise in which an equalization would not be fair to one of the spouses. Specifically, Section 5(6) of the FLA provides the court with discretion to order “an amount that is more or less than half the difference between the net family properties”. This concept is also commonly referred to as “unequal division”. When a claim for unequal division is made, a court will have regard to the factors outlined in Section 5(6) of the FLA. Some of these factors include situations in which one spouse may have incurred debts recklessly or in bad faith, depleted his or her own NFP intentionally or recklessly, or incurred a disproportionately larger amount of debts or other liabilities for the support of the family.

Upon review of the legislation it quickly becomes apparent that situations in which a court will deem the standard equalization process to be “unconscionable” and allow an unequal division are strictly limited. When making its decision, the court must consider all of the factors outlined above and must satisfy itself that an equalization payment in accordance with Section 5(1) would be shockingly unfair given the circumstances. When making this claim, the onus falls on the spouse requesting an unequal division of net family property. A spouse making such a claim can rely on Section 5(6) to ensure that both parties exit the marriage on equitable financial grounds as opposed to equal financial grounds. However, it is important to keep in mind that unequal division is the exception and not the rule. Claims for unequal division typically require unique fact situations in order to persuade a court to exercise its limited discretion to award a spouse an equalization payment that is more or less than half the difference between the net family properties.

The law surrounding the issue of equalization, be it equal or unequal, is complicated to say the very least. There are numerous factors which must be considered when determining which assets should and should not be included in one’s net family property calculation and whether a claim for unequal division should be made. Spouses with questions about equalization, exclusions and claims for unequal division would be best served by seeking legal advice from experienced family law counsel.

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Ontario is about to witness a profound change in the way that disabled adult children are dealt with under the law for the purposes of claiming child support.  The Provincial Government intends to table an amendment to Ontario’s Family Law Act (“FLA”) this Fall, to give custodial parents of adult children with disabilities the right to claim child support.

The proposed legislative amendment to the provisions of the FLA come in the wake of a recent Provincial Court decision where a Brampton single mother won her fight to claim child support for her 22 year old disabled son.  The court held that the provisions for child support in the Provincial legislation, the FLA, were unconstitutional in that they discriminated against adult children with disabilities.  

Single parents or common law parents who wish to claim child support are governed by the terms of the Provincial legislation when it comes to making claims for child support whereas married parents will fall under the Federal legislation, the Divorce Act.  The critical difference between the two pieces of legislation is that the FLA does not make provision for ordering the payment of support for an adult child with disabilities whereas the Divorce Act clearly does.  In the recent ruling, Mr. Justice William Sullivan made a precedent setting decision by finding that the Applicant Mother, Robyn Coates, had the right to claim support for her son, Joshua, who was over the age of 18 but was unable to withdraw from parental control because of a disability.

For all intents and purposes, the ruling by Mr. Justice Sullivan adopts the Federal Divorce Act wording for determining if a child is entitled to support, which means that Ms. Coates’ son was eligible for child support from his father.

For many years, lawyers, judges and legal analysts have noted with concern the apparently inexplicable difference between the way disabled adult children are treated for the purposes of their support rights under Provincial legislation versus the much more expansive definition of a child under the Federal Divorce Act. Assuming the new legislation is passed, this will now be remedied, something that many consider to be a long overdue step.

If you have any questions relating to any of the above, please do not hesitate to contact Marc Tannenbaum at mtannenbaum@freedinrowell.com or 905.276.0417.

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Are you married with children, but do not have a Will? If you were to be crushed by a meteor tomorrow do you know who would get your money? Keep reading and find out.

If you are married with children and were to die without a Will (called dying intestate) your surviving spouse does not simply inherit the residue of your Estate (i.e., what is left over after your Estate has paid all your debts). Instead, your surviving spouse would be put to a choice, either a) claim an equalization payment from your Estate, or b) claim a “preferential share” from your Estate. If he or she takes an equalization payment then the remaining residue of your Estate, in most cases, gets distributed to your children equally. If he or she takes the preferential share option, then the residue of your Estate is distributed as follows.

A spouse claiming a preferential share is entitled to the first $200,000 from the residue of the Estate, and depending on how many children you have, up to 50% of the remaining residue. If you have one child, then your spouse and child would split the remainder on 50/50 basis. If you have two or more children, your spouse would get 1/3 of the remaining residue with the balance to be split equally amongst all of the children. If your Estate has less than $200,000, your spouse gets the entire residue and your children get nothing.

If you do not want your Estate distributed in this manner, give us a call. We are always happy to take a few minutes to talk with anyone about their Estate planning options. The call is free, so you have nothing to lose. Your future self will thank you. We promise.

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The issue of child support is complex and multifaceted but this is all the more true when discussing the question of support for an adult child. Many parents are surprised to learn that their obligation to support their child or children does not necessarily cease when a child reaches adulthood.

The existing and emerging trends in case-law to order support for adult children are a reflection of societal changes. The reality is that more and more adult children are residing with their parents for longer periods of time. There is recognition that it has become increasingly difficult and expensive for adult children to withdraw from parental care. In certain circumstances, there can be lengthier obligations to support adult children in the context of separation and or divorce. Examples of this include but are not limited to adult children pursuing a post-secondary education and/or those children who are unable to withdraw from parental care by virtue of illness or disability.

Federal Legislation has extended its definition of a “child of the marriage” to include children who are over the age of majority but unable to withdraw from their parent(s) charge due to illness, disability, or other cause and, therefore, are unable to obtain the necessaries of life. i.

Provincial Legislation provides that parents are obligated to provide support for a child who is unmarried or enrolled in full time education, assuming that the child has not reached the age of sixteen (16) and withdrawn from parental control. ii

Notwithstanding the above, the mere fact that an adult child is registered in and attending post-secondary education is not, in and of itself, determinative of entitlement to parental support. All of the following will be taken into account by the law: entitlement, the child’s needs, the child’s obligation to contribute and the parental obligation to contribute. Quantum of support is also impacted by where the child is residing while attending school. Further, courts will also consider whether the child is enrolled in part-time or full-time education as this will have implications on whether the Provincial or Federal Legislation will be applied. Lastly, income earned by the child(ren) will be taken into account when apportioning the overall costs of the child’s education.

As previously mentioned, Federal Legislation requires parents to support adult children who are unable to obtain the necessaries of life due to illness or disability. It is important to note that support received in these circumstances, regardless of quantum, is not income attributable to the child(ren); however, disability payments received by adult child(ren) are taken into account when determining quantum of support payable by the payor parent.

The quantum of support payable for an adult child is determined in one of two ways: the table amount of support payable for minor children in accordance with the Child Support Guidelines, or, an amount that the court considers to be appropriate “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.”

Through case-law, courts have been able to establish and apply a test for determining under what circumstances an Order for child support for an adult child will be awarded. Namely, is the child entitled to support and, if so, is the table amount of support appropriate? If the table amount of support is not appropriate then the appropriate level of support must be determined.

It is important to consider the amount of time that the adult child is residing with each parent as this will have implications on the quantum of support each parent is responsible to contribute.

The law with respect to support for an adult child is both complicated and ever evolving. When determining entitlement, quantum and duration of support for adult children, there are numerous factors and differing legislation that should be considered. The subject is understandably fraught with misconceptions and parents with questions about their potential support obligations are best served by seeking legal advice from experienced family law counsel.

Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s.2(1).
Family Law Act, R.S.O. 1990, C. F.3, s.31.

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