REPORTS of FAMILY LAW Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit De La Famille VOLUME 71 (Cited 71 R.F.L

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[Indexed as: Hyczkewycz v. Hupe] Mary Viola Hyczkewycz (Plaintiff / Respondent) and Paul Hupe (Defendant / Appellant) and Sharon Linda Hupe (Defendant) Manitoba Court of Appeal Docket: AI 15-30-08472 2016 MBCA 23 Richard J. Chartier C.J.M., Holly C. Beard, Christopher J. Mainella JJ.A. Heard: February 10, 2016 Judgment: February 10, 2016 Family law –––– Division of family property — Determination of ownership of property — Application of trust principles — Resulting and constructive trusts — Resulting trusts generally –––– Defendant man and defendant woman were engaged in matrimonial litigation — Plaintiff mother of woman brought action claiming she had beneficial interest in three properties registered in name of one or both defendants on ground of resulting trust — Defendant man brought successful motion for summary judgment to dismiss plaintiff’s claim based on indefeasibility of title provisions of s. 59 of Real Property Act — Master found that s. 59 of Act was absolute bar to any resulting trust claim in Manitoba and struck out statement of claim — Plaintiff’s appeal was allowed — Judge interpreted s. 59 of Real Property Act — Judge found that there was credible evidence that plaintiff might be able to rebut statutory presumption of in- defeasiblity of title under s. 59 of Act at trial — Judge held that defendant man had not established that he had prima facie defence to resulting trust claim — Judge could not conclude that plaintiff’s case was bound to fail — Defendant man appealed — Appeal dismissed — Trial of legal and factual issues was required — There were triable issues as to proper interpretation of s. 59 of Act given approaches in other provinces and case law in Manitoba — There were triable issues as to facts surrounding alleged resulting trusts. Civil practice and procedure –––– Summary judgment — Requirement to show no triable issue –––– Defendant man and defendant woman were engaged in matrimonial litigation — Plaintiff mother of woman brought action claiming 2 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

she had beneficial interest in properties registered in name of defendants on ground of resulting trust — Defendant man brought successful motion for summary judgment to dismiss plaintiff’s claim — Plaintiff’s appeal was allowed — Judge interpreted s. 59 of Real Property Act — Judge held that defendant man had not established that he had prima facie defence to resulting trust claim — Judge could not conclude that plaintiff’s case was bound to fail — Defendant man appealed — Appeal dismissed — There were triable issues as to proper interpretation of s. 59 of Act and as to facts surrounding alleged resulting trusts — Judges deciding motions for summary judgment were discouraged from making statements about law, where law was in dispute, if they were referring that same legal issue back for determination by another judge — Making statements as to interpretation of law in case where responsibility would fall to another judge in same case to interpret that same law was unnecessary use of judicial resources and jeopardized judicial comity. Statutes considered: Real Property Act, R.S.M. 1988, c. R30 s. 59 — considered

APPEAL by defendant from judgment reported at Hyczkewycz v. Hupe (2015), 2015 MBQB 134, 2015 CarswellMan 397, 56 R.P.R. (5th) 32, [2015] 9 W.W.R. 830, 63 R.F.L. (7th) 86, 320 Man. R. (2d) 126 (Man. Q.B.), allowing plaintiff’s appeal from judgment granting defendant’s motion for summary judgment to dismiss plaintiff’s claim for resulting trust.

C.B. Paul, for Appellant W.S. Gange, K.B. Bomback, for Respondent

Per curiam:

1 The defendant, Paul Hupe (the defendant), appeals the decision of the motion judge rejecting his request to dismiss, by way of summary judgment, the plaintiff’s claim that she is the beneficial owner of certain properties pursuant to the law of resulting trusts. This motion for summary judgment raises both disputed legal and factual issues. The legal issue relates to the interplay between section 59 of The Real Property Act, CCSM c R30 (the RPA), and resulting trusts, while the factual issues relate to whether there was, in fact, a resulting trust. 2 In coming to his decision, the motion judge provided his interpretation of section 59 of the RPA and then found that the evidence did not lead him to conclude that the plaintiff’s case must fail. On that basis, he dismissed the entire summary judgment motion, with the effect that both Hyczkewycz v. Hupe Per curiam 3

the legal and factual issues would have to be determined by another judge. In this case, the motion judge was not asked to decide the legal issue separate from the factual issue. 3 We are satisfied that there are triable issues as to the proper interpretation of section 59, given the approaches in other provinces and the case law in Manitoba, and also as to the facts surrounding the alleged resulting trusts. As the law is unsettled and there are material credibility issues regarding the parties, we are all of the view that this is not an appropriate case to be decided by summary judgment. A trial of these issues is required. 4 In reaching our decision, we are neither endorsing nor disagreeing with the interpretation of section 59 given by the motion judge. Whether that section is an absolute bar, a rebuttable presumption or something else is a question we think is best left for the trial judge to decide, with the benefit of a full record. 5 We would take this opportunity to say something about reasons where a judge hearing a motion for summary judgment decides not to grant summary judgment. Judges deciding motions for summary judgment are strongly discouraged from making statements about law, where the law is in dispute, if they are referring that same legal issue back for determination by another judge. A short endorsement that the moving party has not met the test for summary judgment for a stated reason(s) is all that is required. Making statements as to the interpretation of a law in a case where the responsibility will fall to another judge in the same case to interpret that same law is an unnecessary use of judicial resources and, more importantly, jeopardizes judicial comity; the trial judge is placed in the difficult position of potentially having to disagree with a colleague. 6 In the result, the appeal is dismissed with costs. Appeal dismissed. 4 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Kohlman v. Bergeron] Jamie Kohlman, Appellant and Veronique Fabienne Bergeron, Respondent Alberta Court of Appeal Docket: Edmonton Appeal 1503-0184-AC 2015 ABCA 410 Ronald Berger, Myra Bielby, Barbara Lea Veldhuis JJ.A. Heard: October 5, 2015 Judgment: December 23, 2015 Family law –––– Support — Child support under federal and provincial guidelines — Determination of spouse’s annual income — Non-recurring losses –––– Parties had one child — Consent order set father’s Guideline income at $124,800 and provided for annual adjustments of child support payments — Father’s income had increased significantly but child support was never adjusted until mother applied for retroactive child support — Chambers judge concluded that calculation of child support should be based strictly on father’s line 150 income and there were no adjustments for money father was repaying to cover investment losses in business that ultimately failed — Father appealed — Ap- peal allowed — Losses incurred by father were unrecoverable and they must be repaid — There was no suggestion that father embarked on scheme to avoid his child support obligations — Chambers judge erred in interpreting s. 17(2) of Federal Child Support Guidelines by finding, in effect, that child’s best interests always trumped allowing business loses as deduction from payor’s income — Business losses that were permitted to be claimed for income tax purposes could be claimed in establishing child support obligations unless judge concluded that doing so would not provide fairest determination of annual income — Factors that ought to be considered included whether investment was made in good faith and whether there was reasonable likelihood of profit — Judge had to take into account evidence that addressed relevant considerations to determine whether it would be fair to allow any or all of husband’s businesses losses. Statutes considered: Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to Kohlman v. Bergeron Per curiam 5

s. 16 — considered s. 17(2) — considered Sched. III, s. 8 — considered

APPEAL by father from determination of income for purpose of determining retroactive child support.

B.M. King, for Appellant Y.S. Van Wachem, for Respondent

Per curiam:

1 An application was brought by the appellant in family law special chambers to adjust child support payments set out in a Consent Order of November 30, 2009. It set the father’s guideline income at $124, 800.00 and provided for the annual adjustment of child support payments for their child, Jonathan, 11 years old, based on the parties’ annual income. The father’s actual employment income had increased significantly since then, with his 2014 income being $269, 474.00; however, child support was never adjusted as required until the mother applied for retroactive child support in 2015. 2 The chambers judge concluded that the calculation should be made strictly on the basis of line 150 income, and that there would be no adjustment to account for monies that the appellant was repaying to cover investment losses in a business that ultimately failed. The decision to invest in the business, described by the chambers judge as a “risk,” was concurred in by the respondent as co-investor. In 2009 Canada Revenue Agency issued notices of reassessment, allowed the father to claim the business investment losses totalling approximately $340,000.00 against his employment income, and granted a refund for 2009 and 2010, the years in which the losses were deemed to have been suffered. 3 At the retroactive child support application, the father argued that his guideline income should be reduced by the annual repayment costs of the loans borrowed in relation to the losses. 4 The chambers judge was of the view that the ongoing payments to retire the debt could be made after “Jonathan has left the nest.” (Tran- script page 13, line 19) She held that Jonathan is a first charge on the appellant’s income, and payments to be made to third parties do not rank in priority. 5 The father says the chambers justice erred by: 6 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

a) Failing to apply the provisions of s. 8 of Schedule III of the Guidelines to allow him to deduct from his income the amount of the actual business investment loss in the applicable years; and b) Alternatively, failing to apply s. 17(2) of the Guidelines to adjust the amount of the losses, including related expenses, carrying charges and interest expenses, to arrive at an appropriate guideline annual income that reflects the appellant’s annual cost to repay amounts borrowed for investment in the business that gave rise to the losses. 6 Section 17(2) reads as follows: Where a parent has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the parent’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 7 and 8 of Schedule 3, and may adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at an amount that the court considers appropriate. 7 Section 8 of Schedule III reads as follows: Deduct the actual amount of business investment losses suffered by the parent during the year. 8 Section 16 of the Guidelines is also engaged, it provides that subject to sections 17-20 (for purposes of this appeal only section 17 is an issue) a parent’s annual income is: a) determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency, and b) adjusted in accordance with Schedule III. 9 The appellant also says that an unfair consequence flows from deducting the full business losses in given taxation years. He maintains that because the appellant has three children to support (Jonathan and two other children living under his roof with his present wife), if Jonathan receives what the appellant considers to be an “inflated” level of support, that would work an injustice for the other children, given the amount of available dollars. 10 It follows that the main issue on appeal is whether the appellant’s business investment losses should have been used to reduce his guideline income. Kohlman v. Bergeron Per curiam 7

11 The relief claimed by the appellant is framed as follows: The Court should reduce the payor’s line 150 income by the amount being repaid in any given calendar year, including both principal and interest...[because] they are being applied for debt reduction.

Analysis 12 There is no dispute that the losses incurred by the appellant are unrecoverable. Importantly, they must be repaid. Accordingly, the losses here are distinguishable from a loss occasioned by an improvident investment of savings. Although both may qualify as business investment losses under the Income Tax Act, it does not necessarily follow that both will be dealt with in the same fashion under the Child Support Guidelines. It is the case that section 8 of Schedule III allows for the deduction of “the actual amount of business investment losses suffered by the [payor] during the year.” “Business investment losses” are not defined. Nor is “business investment loss” defined in section 17(2) of the Guidelines, which on its face makes clear that the operation of section 8 of Schedule III is left to the discretion of the court and that in determining annual income, that which governs is “fairness.” 13 In the case at bar, the chambers judge considered the following factors: 1. The appellant has a regular employment income which “does not have to be cobbled together from various sources.” He “knew what his salary was to be.” 2. The appellant decided to take a risk. He must now repay the money he borrowed “to engage in that risk.” 3. Repayment “takes second place to his obligation to his children.” 14 On the basis of the foregoing, the judge concluded that “This is not a case where the Court should exercise its discretion to adjust the income and thus the child support.” 15 Absent from the reasons in the court below is there any suggestion that the appellant embarked on a scheme to avoid his child support obligations. Nor is there a recitation of the salient considerations that inform a “fair” and “appropriate” calculation of income. The fact that the appellant assumed a risk and has a certain single source of income begs the question. Similarly, to ritually incant that “children come first” sheds no light on when and how the discretion contemplated by section 17(2) should be exercised. 8 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

16 The relevant inquiry is whether, in the application of section 17(2) of the Guidelines, in the circumstances of this case, Mr. Kohlman’s annual income as determined by section 8 of the Child Support Guidelines should be calculated by deducting his annual loan repayments on the money borrowed to invest in his now failed restaurant, Gourmet Gather- ings, for the purpose of establishing his child support obligation (although accepted by the Canada Revenue Agency for the purposes of establishing his income tax obligations for the years 2009 and 2010). 17 The chambers judge erred in her interpretation of s. 17(2) by finding, in effect that the child’s best interest always trumped allowing business losses as a deduction from the payor’s income in the journey to setting child support. This interpretation would result in s. 8 of Schedule III never operating, as the mere fact that a child needs to be supported would mean a payor could never deduct business losses as expressly permitted by that section. That is not what s. 17(2) provides. Rather, business losses permitted to be claimed for income tax purposes may be claimed in establishing child support obligations unless a judge concludes that doing so “would not provide the fairest determination of annual income.” 18 The relevant inquiry includes, but is not confined, to the following questions: a) Was the investment made in good faith in the expectation of profit? b) Was there a reasonable likelihood of profit being made from the business in which the loss was incurred at the time the investment was made? c) Documentary proof of the portion of the loan advanced by a family member, the interest rate paid on the loan and proof of actual repayment. d) Whether the entire loan had been repaid during the years over which retroactive child support is claimed and if not, what portion was repaid in each relevant year. e) Whether any portion of the loan remains unpaid and, if so, when it is required to be paid by the underlying loan documentation. f) The size of the loan in comparison to the payor’s income from all other sources. 19 Evidence addressing each of these considerations will allow the judge to determine whether it would be fair to allow any or all of the payor’s business losses by way of assessing the actual quantum of these loses and Kohlman v. Bergeron Per curiam 9 the degree of risk undertaken by the payor and his wife at the time of investing in Gourmet Gatherings. Allowing the deduction of some or all of the business loss in setting guideline income is premised on the proposition that had the business made income, that income would have been added to the payor’s employment income for the purposes of setting child support. Appeal allowed. 10 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Dyck v. Bell] Lorilee Dyck, Respondent (Claimant) and Steven Bell, Appellant (Respondent) British Columbia Court of Appeal Docket: Vancouver CA42855 2015 BCCA 520 Saunders, Chiasson, Harris JJ.A. Heard: November 27, 2015 Judgment: December 22, 2015 Family law –––– Support — Child support under federal and provincial guidelines — Variation or termination of award — Appeal or review –––– Parties had two children, born in 1999 and 2001 — Parties shared joint custody and guardianship pursuant to November 2009 consent order — Father paid $400 monthly child support and paid two-thirds of special and extraordinary expenses — Parties shared care of children on alternating weekly basis — Father paid $400 monthly spousal support from December 2009 to November 2018, subject to review in 2012 — Older child began living with mother full-time in May 2012 while other child continued to alternate between parents weekly — Mother applied for retroactive child support based on father’s imputed income from May 2012, and to vary ongoing child support; father applied for retroactive cancellation of spousal support — Mother’s application granted and father was ordered to pay retroactive child support totaling $12,163 plus $12,534 to account for shortfall and to pay $1,190 monthly commencing January 2015 — Fa- ther appealed — Appeal allowed — Chambers judge erred in calculating child support — Economies of scale approach should have been used where starting point of analysis would be payment based on table amount of father for two children, less table amount of mother for one child — Court was then required to consider application of s. 9 of Federal Child Support Guidelines (Guide- lines) — Matter was remitted to Supreme Court to determine issue based on evidentiary foundation and in interim, father was ordered to pay child support of $802 per month — Chambers judge erred in principle in making retroactive child support order as he failed to have regard to importance of previous consent order, did not consider mother’s delay in applying for increased child support, attributed blameworthy conduct to father without considering material evidence relevant to issue, had insufficient evidence of circumstances of children and did not consider hardship to father of retroactive award — In circumstances, consent order and father’s compliance deserved weight — Older child’s move had potential to affect amount of child support that was payable but amount of change Dyck v. Bell 11 and whether it would be material was not clear — Father’s Guidelines income only modestly increased and impact of increase on child support was also modest — Mother lacked reasonable excuse for not making application earlier — Evidence did not establish that father put his own interests over those of children and there was no evidence that children suffered any hardship — Any retroactive award would cause father genuine financial hardship. Family law –––– Support — Child support under federal and provincial guidelines — Retroactive award — Miscellaneous –––– Parties had two children, born in 1999 and 2001 — Parties shared joint custody and guardianship pursuant to November 2009 consent order — Father paid $400 monthly child support and paid two-thirds of special and extraordinary expenses — Parties shared care of children on alternating weekly basis — Father paid $400 monthly spousal support from December 2009 to November 2018, subject to review in 2012 — Older child began living with mother full-time in May 2012 while other child continued to alternate between parents weekly — Mother applied for retroactive child support based on father’s imputed income from May 2012, and to vary ongoing child support; father applied for retroactive cancellation of spousal support — Mother’s application granted and father was ordered to pay retroactive child support totaling $12,163 plus $12,534 to account for shortfall and to pay $1,190 monthly commencing January 2015 — Father appealed — Appeal allowed — Chambers judge erred in calculating child support — Economies of scale approach should have been used where starting point of analysis would be payment based on table amount of father for two children, less table amount of mother for one child — Court was then required to consider application of s. 9 of Federal Child Support Guidelines (Guidelines) — Matter was remitted to Su- preme Court to determine issue based on evidentiary foundation and in interim, father was ordered to pay child support of $802 per month — Chambers judge erred in principle in making retroactive child support order as he failed to have regard to importance of previous consent order, did not consider mother’s delay in applying for increased child support, attributed blameworthy conduct to father without considering material evidence relevant to issue, had insufficient evidence of circumstances of children and did not consider hardship to father of retroactive award — In circumstances, consent order and father’s compliance deserved weight — Older child’s move had potential to affect amount of child support that was payable but amount of change and whether it would be material was not clear — Father’s Guidelines income only modestly increased and impact of increase on child support was also modest — Mother lacked reasonable excuse for not making application earlier — Evidence did not establish that father put his own interests over those of children and there was no evidence that children suffered any hardship — Any retroactive award would cause father genuine financial hardship. 12 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Variation or termination — Duty to become self-sufficient –––– Parties lived together for six years and were married for another 11 years — Parties had two children, born in 1999 and 2001 — Parties shared joint custody and guardianship pursuant to November 2009 consent order — Father paid $400 monthly child support and paid two-thirds of special and extraordinary expenses — Parties shared care of children on alternating weekly basis — Father paid $400 monthly spousal support from December 2009 to November 2018, subject to review in 2012 — Older child began living with mother full- time in May 2012 while other child continued to alternate between parents weekly — Mother applied for retroactive child support based on father’s imputed income from May 2012, and to vary ongoing child support; father applied for retroactive termination or reduction in spousal support — Mother’s application granted and father was ordered to pay retroactive child support totaling $12,163 plus $12,534 to account for shortfall and to pay $1,190 monthly commencing January 2015 — Father’ application was dismissed — Father appealed — Appeal allowed — Consent order did not limit scope of or issues for spousal support review so application included review of both entitlement and quantum — There was no obligation on father to show material change in circumstances — Chambers judge should have adjourned application to allow parties to adduce adequate evidentiary foundation for review. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Variation or termination — Appeals –––– Parties lived together for six years and were married for another 11 years — Parties had two children, born in 1999 and 2001 — Parties shared joint custody and guardianship pursuant to November 2009 consent order — Father paid $400 monthly child support and paid two-thirds of special and extraordinary expenses — Par- ties shared care of children on alternating weekly basis — Father paid $400 monthly spousal support from December 2009 to November 2018, subject to review in 2012 — Older child began living with mother full-time in May 2012 while other child continued to alternate between parents weekly — Mother applied for retroactive child support based on father’s imputed income from May 2012, and to vary ongoing child support; father applied for retroactive termination or reduction in spousal support — Mother’s application granted and father was ordered to pay retroactive child support totaling $12,163 plus $12,534 to account for shortfall and to pay $1,190 monthly commencing January 2015 — Father’ application was dismissed — Father appealed — Appeal allowed — Consent order did not limit scope of or issues for spousal support review so application included review of both entitlement and quantum — There was no obligation on father to show material change in circumstances — Chambers judge should have adjourned application to allow parties to adduce adequate evidentiary foundation for review. Dyck v. Bell 13

The parties lived together for six years, were married for another eleven years and had two children. The parties settled their issues by way of an agreement, which was contained in a consent order. The consent order included a shared custody arrangement for both children, alternating weeks, with father paying child support of $400 per month and spousal support of $400 per month, based on an income of $60,000 per year. Income of $20,000 per year was imputed to the mother. The older child began living full-time with the mother and the custody of the younger child continued to be shared. The mother applied for a retroactive variation of child support and the father applied to retroactively terminate or reduce spousal support. The chambers judge varied the terms of the consent order that imputed income to the mother, accepting that she was unable to work. The chambers judge took the two-stage approach to hybrid custody situations. The chambers judge first calculated the amount of child support payment for the child primarily living with the mother. The chambers judge then calculated child support for the child living in the shared custody arrangement, using a set-off approach. The chambers judge varied child support so that the father was to pay $1,190 per month, which was more than the father’s child support obligation would have been if both children were primarily residing with the mother. The father was ordered to pay retroactive child support of $24,697, calculated from the date the older child started to live full-time with the mother, based on the father’s blameworthy conduct in not disclosing the increase in his income and that he must have known that the child’s move was a material change in circumstances that would lead to an increase in child support. The chambers judge dismissed the father’s application to review spousal support. The father appealed. Held: The appeal was allowed. Per Harris J.A. (Saunders and Chiasson JJ.A. concurring): The parties agreed that the chambers judge erred in his calculation of child support. The chambers judge should have adopted the “economies of scale” approach. Following that approach, the starting point of the analysis would be payment based on the table amount of the father for two children, less the table amount of the mother for one child, which was $976 per month. The chambers judge was then required to consider the application of s. 9 of the Federal Child Support Guidelines (Guide- lines) and Contino v. Leonelli-Contino, which he failed to do. As the evidence before the chambers judge was insufficient to allow him to apply those principles, he erred in not adjourning the application to allow the parties to adduce sufficient evidence. Much of the information required to conduct a proper analysis was not before the Court of Appeal and it was not in a position to make the necessary determinations to resolve the issue. The matter was remitted to the Supreme Court to permit the parties to supplement the record to ensure that the proper evidentiary basis was before the court. In the interim, the father was ordered to pay child support of $802 per month. 14 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

The chambers judge erred in principle in ordering retroactive child support. The chambers judge failed to have regard to the factors that governed the exercise of discretion in making a retroactive award. Retroactive awards were not exceptional and reflected the policy that child support was the right of the child and parents were expected to fulfil their obligations. The court must balance the payor’s interest in certainty with the need for flexibility and fairness. The chambers judge had no regard to the importance of the previous consent order, did not consider the mother’s delay in applying for increased child support, attributed blameworthy conduct to the father without considering the material evidence relevant to that issue, had insufficient evidence of the circumstances of the children and did not consider the hardship to the father of a retroactive award. There was sufficient evidence for the Court of Appeal to determine the issue of retroactive child support. The parties had settled their obligations, and the father had complied with his obligations under the consent order. The court must give considerable weight to agreements reached by parents. The consent order was an example of a compromise that should have been viewed holistically. The child support incorporated into the order was less than the Guidelines amount. The chambers judge gave no weight to the agreement. In the circumstances, the agreement and the father’s compliance with it deserved weight even though the older child went to live full-time with the mother. The older child’s move had the potential to affect the amount of child support that was payable but the amount of the change and whether it would be material was not clear. The father’s Guideline income only modestly increased and the impact of the increase on child support was also modest. The father was not in a position to predict that income would no longer be imputed to the mother. The child support scheme did not provide for a principle of automatic disclosure of any changes in income, although a payor who failed to disclose an increase might risk a retroactive award being made. The consent order did not provide for regular financial disclosure and the father was not in breach of any disclosure obligations. This case involved a shared custody arrangement and the rule of disclosure applied to both parents. The mother did not make any financial disclosure that would have permitted the father to evaluate the implications on child support resulting from the older child’s move. Almost three years passed after the older child moved full-time to live with the mother before she sought an increase in child support. The evidence supported the conclusion that the mother must have known that higher child support payments might be warranted but she decided not to apply and she lacked a reasonable excuse for not dealing with the issue earlier. The father knew that a combination of the modest increase in his income and the older child’s move might affect his child support obligation. However, that was not enough to conclude that his conduct was sufficiently blameworthy to justify a retroactive award when considered in the context of the other relevant considerations. The evidence did not establish that the father put his own interests over those of the Dyck v. Bell 15 children. The father also contributed financially to the children’s activities. There was no evidence that the children suffered any hardship. The father did not have the income or the assets to finance the retroactive award. Any retroactive award would cause the father genuine financial hardship. Taking into account all the relevant considerations, a retroactive child support award was not warranted and the chambers judge erred in principle in making the award. The consent order did not limit the scope of or the issues for the spousal support review so the application included a review of both entitlement and quantum. There was no obligation on the father to show a material change in circumstances. The parties did not provide the evidence necessary for the chambers judge to conduct a review of the father’s spousal support obligations and he should have adjourned the application to allow the parties to adduce an adequate evidentiary foundation for the review. Cases considered by Harris J.A.: B. (R.) v. L. (L.M.) (2014), 2014 BCSC 134, 2014 CarswellBC 221 (B.C. S.C.) — referred to Contino v. Leonelli-Contino (2005), 2005 CarswellOnt 6281, 2005 CarswellOnt 6282, 2005 SCC 63, [2005] S.C.J. No. 65, 19 R.F.L. (6th) 272, 259 D.L.R. (4th) 388, 341 N.R. 1, 204 O.A.C. 311, [2005] 3 S.C.R. 217, 80 O.R. (3d) 480 (note) (S.C.C.) — followed Domirti v. Domirti (2010), 2010 BCCA 472, 2010 CarswellBC 2864, 10 B.C.L.R. (5th) 281, 294 B.C.A.C. 127, 498 W.A.C. 127, [2010] B.C.J. No. 2074 (B.C. C.A.) — referred to P. (E.G.) v. P. (S.L.) (2009), 2009 BCSC 1221, 2009 CarswellBC 2372, [2009] B.C.J. No. 1790 (B.C. S.C.) — referred to S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2006] S.C.J. No. 37, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231, [2005] S.C.C.A. No. 100 (S.C.C.) — followed Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 15.2 [en. 1997, c. 1, s. 2] — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to s. 9 — considered 16 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Sched. I, s. 4(f) — referred to

APPEAL by father from judgment reported at Dyck v. Bell (2015), 2015 BCSC 910, 2015 CarswellBC 1468 (B.C. S.C.), varying child support payable, order for retroactive child support and dismissal of his application to review spousal support. .

G.N. Kent, for Appellant A.N. Svetlichny, for Respondent

Harris J.A.: Introduction 1 This is an appeal of an order which varied the child support payable by the appellant, Mr. Bell, in respect of two children of the marriage, ordered retroactive child support in the amount of $24,697, and dismissed Mr. Bell’s application to review spousal support. 2 Neither party was represented on the applications in the Supreme Court. Both parties are represented in this Court. The unusual aspect of this appeal is that both parties agree that the chambers judge erred in his calculation of child support as a result of using a mathematical approach that was inappropriate given the living arrangements of the two children. Here, the parenting arrangement is a “hybrid” custody situation, where one child resides primarily with the respondent, Ms. Dyck, and the other child spends one-half of his time with each parent. 3 Moreover, Ms. Dyck accepted that the evidentiary record before the chambers judge was insufficient to permit him to determine properly the issues before him. She did not seriously contest Mr. Bell’s contention that the chambers judge had not considered both the appropriate section of the Federal Child Support Guidelines, SOR/97-175, and the principles set out in Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.), that bear on child support in these circumstances. Nor did she contest that, with respect to the application to review spousal support, the chambers judge had not weighed the evidence against the applicable section of the Di- vorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Ms. Dyck did not dissent from Mr. Bell’s argument that this matter would have to be remitted to the Supreme Court to allow an adequate record to be developed. 4 For the reasons that follow, I would allow the appeal and remit certain issues to the Supreme Court. I am satisfied, however, that the record before us is sufficient to demonstrate that the chambers judge erred in Dyck v. Bell Harris J.A. 17

awarding retroactive child support. I would allow the appeal of that term of the order. I would also provide for certain interim prospective child support pending a final determination of the issues in the Supreme Court.

Background 5 Ms. Dyck and Mr. Bell began living in a marriage-like relationship in 1991 and married in 1997. They separated in February 2008 and were divorced on November 16, 2009. In September 2008, Ms. Dyck moved in with her current partner, a Mr. Haugen. 6 The couple have two children A.J.B., born February 1999, and D.E.B., born March 2001. Ms. Dyck also has a child, born in 2009, from her relationship with Mr. Haugen. 7 Ms. Dyck and Mr. Bell settled all of the issues arising from the breakdown of their marriage by way of an agreement contained in a consent order granted by Mr. Justice Leask on November 16, 2009. The consent order included a shared custody arrangement for both children (alternating weeks), fixing child support at $400 per month for the two children. The consent order also fixed spousal support at $400 per month until November 1, 2018, with a right to apply for a review after November 16, 2012. 8 The Guideline income set out in the consent order for Mr. Bell was $60,000. Ms. Dyck’s Guideline income was imputed at $20,000. I note that the amount of child support was lower than what the table amount would have required if Ms. Dyck’s actual income had been used. 9 In May 2012, A.J.B. began living full time with Ms. Dyck. Custody of D.E.B. continued to be shared. 10 Mr. Bell was put on notice that Ms. Dyck intended to apply for increased child support in January 2015. The application was filed in Feb- ruary 2015 and sought “full support” for A.J.B. retroactive to May 2012 and a change of the provision in the order dealing with special and extraordinary expenses. 11 Mr. Bell, in turn, applied to vary the consent order seeking to terminate or reduce spousal support retroactively. 12 For the years 2012, 2013 and 2014, Mr. Bell’s line 150 income was $63,550, $66,859 and $64,295 respectively. 13 For those years, Ms. Dyck’s line 150 income was $12,657, $6,013 and $7,360. 18 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

14 The evidence before the chambers judge included some of the evidence that had been before Leask J. in support of the consent order, as well as additional evidence. 15 The evidence filed in support of the consent order included Ms. Dyck’s acknowledgement that she had moved in with her new common- law partner in September 2008 and that they had shared living expenses, at least until the birth of their child. That evidence was part of the factual matrix in which the consent order was made. 16 In support of her application in 2015, Ms. Dyck did not refer to her relationship with Mr. Haugen or provide any information in her form F8 financial statement about the income of other persons in the household. 17 Mr. Bell, for his part, provided some information concerning his understanding of Ms. Dyck’s arrangements with Mr. Haugen and Mr. Hau- gen’s income. In response, Ms. Dyck did not dispute that she continued to live with her partner, but asserted: I am not in a common law relationship [sic] we have an agreement that I look after the house, and children and keep the house up, pay $280 rent and house hold [sic] bills as that is all I can afford at this time. 18 Ms. Dyck disputed what Mr. Bell had to say about ownership of the house in which she lived and asserted that there was no factual basis for Mr. Bell’s claim about her partner’s income. She said that her personal life has nothing to do with Mr. Bell and the consent order. 19 Beyond disputed claims about Ms. Dyck’s living circumstances with Mr. Haugen and their financial arrangements, there was effectively no concrete evidence dealing directly with those issues. Ms. Dyck did claim to have $20,000 of annual expenses but she did not explain how they were paid for given the income that she declared. 20 The consent order in 2009 imputed income to Ms. Dyck of $20,000. That income exceeded the actual income in the preceding three years. In her affidavit she explained her employment and employment plans. 21 In an affidavit in 2015 in support of her application, Ms. Dyck made what was effectively a bald assertion that she had not worked for medical reasons. Although a doctor’s note and a letter from a physiotherapist were exhibited to the affidavit, there was no admissible opinion evidence concerning Ms. Dyck’s capacity to work or her employability more generally. Dyck v. Bell Harris J.A. 19

22 Mr. Bell provided more detailed financial information about his circumstances and income over the years since the consent order. 23 It is apparent that neither Ms. Dyck nor Mr. Bell has any net worth.

The Reasons for Judgment and the Agreed Error in Calculation 24 In his reasons for judgment, the chambers judge varied the term of the consent order which had imputed income to Ms. Dyck at $20,000. He accepted that she was unable to work and set her income from 2012 forward based on her line 150 income. He then took Mr. Bell’s line 150 income for those same years and performed a mathematical calculation to determine Mr. Bell’s child support obligation for 2012-14. 25 The approach taken by the chambers judge was the so-called two- stage approach to “hybrid” custody situations. This approach involves first calculating the amount of child support payable for the child living primarily with one parent as a sole custody calculation. The next step is to calculate the support payable for the child living in a shared custody arrangement, using a set-off. These amounts would then be added together to determine the total amount of support owing. The judge determined on the basis of Mr. Bell’s Guideline income that the applicable table amount for A.J.B., who lives full time with Ms. Dyck, was $595 per month. Regarding D.E.B., whose custody is shared, the chambers judge was in principle prepared to deduct from the table amount of $595 an amount payable for one child based on Ms. Dyck’s income; however, the table amount based on Ms. Dyck’s income was $0. As a result, the judge concluded that Mr. Bell was also required to pay $595 per month in respect of D.E.B. The result was an overall award of $1,190 per month. The judge does not appear to have been aware of the fact that if both children had been living with Ms. Dyck full time, Mr. Bell’s total child support obligation would have been $976 per month. It is clear that the two-stage method of calculation used by the chambers judge must be in error because it imposes greater child support obligations on Mr. Bell in a situation of shared custody than he would have had to pay if both children lived with Ms. Dyck. 26 Ms. Dyck agrees that the chambers judge fell into error in approaching the calculation of the child support obligations in this way. 27 The error arose because the trial judge should have adopted what is referred to as the “economies of scale” approach: see P. (E.G.) v. P. (S.L.), 2009 BCSC 1221 (B.C. S.C.) at paras. 18-23, and B. (R.) v. L. (L.M.), 2014 BCSC 134 (B.C. S.C.) at paras. 44-47. On that approach, 20 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

the starting point of the analysis would be a payment based on the table amount of Mr. Bell for two children, less the table amount of Ms. Dyck for one child. This would amount to $976 per month based on the Guide- line incomes used by the chambers judge. The court would then be required to consider the application of s. 9 of the Guidelines in accordance with the principles set out in Contino. 28 Section 9 of the Guidelines stipulates: Shared Custody 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amount set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought. 29 In Contino, the Supreme Court explained that s. 9 requires an exercise of the court’s discretion, based on the factors set out in the section, and not simply the application of a mathematical formula: 27 The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail (see Wensley, at p. 90; Payne and Payne, at p. 254; Jamieson v. Jamieson, [2003] N.B.J. No. 67 (QL), 2003 NBQB 74, at para. 24). Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support. ... 33 ... Parliament, in adopting s. 9, deliberately chose to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if to the detriment of predictability, consistency and efficiency to some degree. The legis- lator recognized in s. 9 that there is a wide range of situations of shared custody depicting the reality of different families. The British Columbia Court of Appeal, in the same vein, observed that there is a Dyck v. Bell Harris J.A. 21

myriad of fact patterns which come under the application of s. 9: Green v. Green, at para. 34. ... 68 Section 9(c) vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children...... 75 It seems very clear from the reasons for judgment of Rogers J. that she did not exercise her discretion properly, having relied on a mathematical analysis which is at odds with the approach for determining child support under s. 9 of the Guidelines...... 82 The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Par- liament in s. 9 of the Guidelines must be applied. 30 The chambers judge did not consider s. 9 or the principles set out in Contino. He was not referred to them by the parties. But it is manifest that a proper determination of child support obligations in a shared custody situation requires a court to undertake this analysis. The evidence before the judge was insufficient for him to have applied those principles. In my view, in the circumstances the judge erred by not adjourning the application to allow the parties to adduce sufficient evidence. 31 Having reviewed the evidence in the record it is clear that much of the information that would be required to conduct a proper analysis as required by s. 9 of the Guidelines and Contino is not before us. In my view, we are not in a position, on the current record, to make the determinations needed to resolve the case. Regrettably, I see no alternative but to remit this matter to the Supreme Court to permit the parties to supplement the record in order to ensure that a proper evidentiary basis is laid for a determination of the issues. Encompassed within this direction is a determination, on a proper evidentiary basis, of whether and to what extent Ms. Dyck’s deemed Guideline income of $20,000 should be varied.

The Retroactive Award 32 I turn now to consider the order for payment of in excess of $24,000 in retroactive child support. The chambers judge made the order for in- 22 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

creased child support payments retroactive to the date on which A.J.B. moved to live full time with her mother rather than to the date on which Mr. Bell received notice of the application. His decision was based on two factors. First, Mr. Bell’s income had increased over the years and he had not disclosed that increase in income. Second, Mr. Bell must be taken to have known that his daughter’s move was a material change in circumstances that would lead to an increase in his child support obligations. These considerations led the judge to conclude that Mr. Bell had been blameworthy in failing to discharge properly his child support obligations and that his blameworthy conduct supported a retroactive order. 33 It is clear that the second factor is based on an assumption that Mr. Bell’s support obligations would increase. That may not turn out to be correct when sufficient evidence is before the court. 34 In my opinion, the chambers judge erred in principle in making the order. He failed to have proper regard to the factors governing the exercise of his discretion to make a retroactive award set out by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.). 35 The decision in S. (D.B.) clarifies that retroactive awards are not exceptional and reflect the policy of the law that child support is the right of the child and that parents are expected to fulfill those obligations. Whenever those obligations have not been fulfilled there is a basis to make a retroactive award, but whether it is justified depends on the circumstances: S. (D.B.) at paras. 94-97. A court must balance the payor’s interest in certainty with the need for flexibility and fairness. An award is discretionary and is to be based on a consideration of a number of factors including the existence of a prior order or agreement, whether the recipient had a reasonable excuse for his/her delay, the conduct of the payor, the circumstances of the children, and hardship to the payor if a retroactive award is made: S. (D.B.) at para. 133. 36 Here, the chambers judge paid no regard to the importance of the previous consent order, did not consider the delay of Ms. Dyck in applying for increased support, attributed blameworthy conduct to Mr. Bell without a consideration of material evidence bearing on the issue, had insufficient evidence of the circumstances of the children, and did not consider the hardship to Mr. Bell from the retroactive award. In these circumstances, it is my view that the order cannot stand. The issue is whether there is sufficient evidence in the record for us to make the order that should have been made. I think there is. Dyck v. Bell Harris J.A. 23

37 At the outset of the analysis, there are four contextual matters that need to be understood before one can examine whether Mr. Bell’s failure to disclose his increased income was sufficiently blameworthy to warrant a retroactive award. First, the parties had settled their respective obligations on the collapse of the marriage by agreement as reflected in the consent order. Mr. Bell had complied with his obligations under the consent order. As the Supreme Court observed in S. (D.B.), courts must examine and give considerable weight to agreements reached by the parents: 78 In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it: compare C. (S.E.) v. G. (D.C.) (2003), 43 R.F.L. (5th) 41, 2003 BCSC 896. 38 The 2009 consent order was an example of a compromise that should have been viewed holistically. The child support incorporated in that order is less than what would have been ordered on the basis of the parties’ actual Guideline incomes at the time. Here, the chambers judge gave the agreement no weight. In the circumstances of the case, it and Mr. Bell’s compliance with it, deserved weight even though circumstances changed when A.J.B. moved to live with her mother full time. 39 Second, even though A.J.B.’s move had the potential to affect the amount of child support Mr. Bell would be obliged to pay, the amount of the change and whether it would be material, was far from clear. Again, as explained in S. (D.B.) at para. 45, the assumption that an increase in income will increase the total amount of support does not necessarily hold true where there is shared custody: Except for situations of shared custody, where additional considerations apply, a parent’s increase in income will not only increase his/her share of the child support burden; it will increase the total amount of support owed. [Emphasis in original.] 24 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

40 Third, for the year 2012, Mr. Bell’s Guideline income had increased by something less than 6%. The independent impact of this increase on child support, all other things equal, is modest. By contrast, Ms. Dyck’s actual income had fallen to a level that on the mathematical approach taken by the judge there was no set-off against Mr. Bell’s obligations. The amount of the unfulfilled child support obligation, as found by the chambers judge, derived substantially from the drop in Ms. Dyck’s income, not the increase in Mr. Bell’s. 41 The evidence does not support a conclusion that Mr. Bell was in a position to predict that Ms. Dyck’s income would no longer be imputed at $20,000 or to appreciate the effect of this on his child support obligations. In my view, that is an important contextual factor in assessing whether Mr. Bell was blameworthy in not declaring his increase in income. 42 Fourth, as the Supreme Court pointed out in S. (D.B.) at para. 58, the child support scheme does not adopt a principle of automatic disclosure of changes in income: The same could be said about automatic disclosure requirements. The Guidelines provide, at s. 25, that a payor parent must disclose his/her income not more than once per year upon request by the recipient parent. (Though I assume a single custody situation in my discussion here, I should note that this rule will apply to both parents in a shared custody context, as both of their incomes are relevant in determining the amount of child support due: s. 9 of the Guidelines.) Thus the scheme in the Guidelines does not burden a payor parent with an automatic disclosure obligation every time his/her income increases: Walsh v. Walsh (2004), 69 O.R. (3d) 577 (C.A.), at paras. 24-25. 43 As the Supreme Court made clear, with or without an obligation to disclose increases in income, payors who fail to disclose increases may risk a retroactive award being made. But two points are significant here. First, the consent order did not provide for regular financial disclosure. Mr. Bell was not in breach of any disclosure obligations under the order. Second, this case involves support obligations in the context of shared custody (D.E.B. remained in shared custody) and the rule of disclosure applied to both parents. Ms. Dyck did not make any financial disclosure that would have allowed Mr. Bell to evaluate the implications for child support of A.J.B.’s move. 44 I turn now to consider more directly whether, in light of the D.B.S. factors, a retroactive award was justified. Dyck v. Bell Harris J.A. 25

45 The first factor is whether there is a reasonable excuse why increased support was not sought earlier. Nearly three years elapsed after A.J.B. moved full time to Ms. Dyck’s residence before Ms. Dyck sought increased support. As emphasized in S. (D.B.): 100 The defining feature linking the present appeals is that an application for child support — either as an original order or a variation — could have been made earlier, but was not. The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified. 101 Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply. 46 There is no evidence that Ms. Dyck lacked the knowledge, financial or emotional means, or risked any vindictive or adverse reaction from Mr. Bell if she were to have sought increased child support. In some respects, Ms. Dyck was better placed to appreciate the financial consequences of A.J.B.’s move. Most particularly, she was the one best placed to know whether the imputation of income of $20,000 to her remained valid. In my mind, this is an important consideration since her income, and the financial circumstances of her family, is a principal driver of any material change in child support obligations arising on A.J.B.’s move. Moreover, given that the overall child support obligations were to be assessed in a shared custody context, Ms. Dyck had substantially the same disclosure obligations as Mr. Bell. 47 In my view, the evidence supports the conclusion that Ms. Dyck must have known that higher child support payments might be warranted, but decided not to apply. Ms. Dyck lacked a reasonable excuse for not dealing with the issue earlier, even though I accept that to what extent in- 26 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

creased child support was actually owed is uncertain. This factor militates against a retroactive award. 48 I take the view that Mr. Bell similarly knew that a combination of the modest increase in his income and A.J.B.’s move might affect his child support obligations and I agree that he ought to have taken steps to address the issue in 2012. That alone, however, is not enough to reach the conclusion that his conduct was sufficiently blameworthy to justify a retroactive award when considered in the context of the other relevant considerations. S. (D.B.) establishes that: 106 Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. ... 107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz. 108 On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor Dyck v. Bell Harris J.A. 27

parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. 49 The evidence does not establish that Mr. Bell was privileging his own interests over those of his children. Indeed the evidence is that Mr. Bell sought legal advice about the potential consequences of A.J.B.’s move in light of the consent order and his spousal support obligations. The upshot of the advice was that the move would not materially affect his total support obligations. Mr. Bell continued to abide by the consent order and, given all of the uncertainties associated with assessing any change to his child support, one cannot, I think, draw the conclusion that he was intentionally privileging his own interests at the expense of his children by relying on the order. 50 Finally, S. (D.B.) recognizes that the fact that a parent contributes to a child in ways other than through child support may be relevant in assessing whether the parent’s conduct is sufficiently blameworthy to justify a retroactive award: 109 Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Ha- isman (1994), 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79-80. But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered. 51 The evidence in this case is that Mr. Bell had contributed financially to the activities of both of his children in amounts that are materially relative to his means. This factor militates against a retroactive award. 52 S. (D.B.) also identifies the circumstances of the child as a consideration to take into account. Here the emphasis is on whether a child has suffered hardship that should be rectified by a retroactive award. There is no evidence here that would warrant invoking this criterion to justify a retroactive award. 28 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

53 The last relevant consideration is financial hardship to the payor parent if a retroactive award is made. The evidence in the record is clear in my view. Mr. Bell does not have the current income or the assets to finance an award in the amount ordered. Mr. Bell’s income is barely sufficient to fund his prospective obligations and there is nothing to suggest that he enjoys a personal standard of living that diverts his income from supporting his children as the first priority. 54 In my view, after assessing Mr. Bell’s financial situation, any retroactive award of any material amount would cause genuine financial hardship. This consideration also militates against making a retroactive award. 55 For the reasons that I have given, after assessing the evidence in light of the considerations set out in S. (D.B.), I am of the opinion that the trial judge erred in principle in awarding a retroactive award. Such an award is not warranted on the evidence. I would allow the appeal on this ground. I would not remit the issue of entitlement to a retroactive award to the Supreme Court.

Spousal Award 56 The chambers judge dismissed Mr. Bell’s application to review his spousal support obligations. Mr. Bell sought to cancel, or in the alternative, reduce his obligation retroactively and prospectively. 57 A review application proceeds in a similar manner to an initial application for support. Here, where the initial order does not limit the scope of or issues for the review, the application includes a review of both entitlement and quantum, in light of the objectives and factors in s. 15.2 of the Divorce Act. Unlike a variation application, there is no obligation on the applicant to show a material change in circumstances since the previous order: Domirti v. Domirti, 2010 BCCA 472 (B.C. C.A.) at paras. 32- 39. 58 In the present case, the parties did not provide the evidence necessary for the chambers judge to conduct a review of Mr. Bell’s spousal support obligations under s. 15.2. On my reading of the judgment, the chambers judge appears to have focused on whether there had been a material change of circumstances since the consent order, although he does not state so expressly. 59 In these circumstances, the judge should have adjourned the application to allow the parties to supplement the record to provide an adequate evidentiary foundation for the review. Dyck v. Bell Harris J.A. 29

What is the Appropriate Remedy? 60 As noted before, it is, in substance, common ground between the parties that there was insufficient evidence in the record for the chambers judge to decide the issues between the parties. Both in respect of child support and spousal support, the appropriate course of action would have been to adjourn the application to require the parties to supplement the record to provide a proper basis for the judge’s decision. It is clear from Contino that a judge may have an obligation to take that step in the right case: Contino at paras. 56-57. 61 The problem of the insufficient record affects both the child support and spousal support questions before the court. 62 On appeal, Mr. Bell argued that the matter should be remitted for a full trial. I would not accede to that submission. In my view, it is not appropriate for us to direct the form of proceedings in the Supreme Court. As indicated, I consider that what would have been appropriate in this case is for the chambers judge to have adjourned the application to permit the parties to supplement the record. Even though I have concluded that the record before the court was an insufficient foundation for an adjudication of the issues raised by the applications, it is by no means obvious that this matter could not proceed by way of application, supple- mented if necessary by other ancillary procedural rights, such as cross- examination on affidavits, if necessary. 63 I do think, however, that pending a resolution of this matter in the Supreme Court, some interim relief should be ordered. It is common ground that the first step in determining child support obligations involves determining the table amount with an appropriate set-off. Here I would, on an interim basis, use a set-off based on an income imputed to Ms. Dyck of $20,000, since the question of her income is one that I would propose we remit to the Supreme Court. On that basis, the starting point before considering the second and third factors under s. 9 and Con- tino is a child support obligation of $802 per month. I would order that Mr. Bell pay that amount on an interim basis retroactive to June 1, 2015, the date of the order appealed from. I would allow Mr. Bell to pay the back-dated child support in monthly installments of not less than $100. Whether any child support obligation should be retroactive to the date of the notice of application is a matter I would leave to the Supreme Court. 64 I would allow the appeal on the terms set out above. In the particular circumstances of this case, in light of the position taken by Ms. Dyck on the appeal, and the fact that many of the difficulties arose because the 30 REPORTS OF FAMILY LAW 71 R.F.L. (7th) parties were self-represented and because the chambers judge did not demand, as he should have, further evidence, I would order that each party bear their own costs of the appeal.

Saunders J.A.:

I agree

Chiasson J.A.:

I agree Appeal allowed. Abdollahpour v. Banifatemi 31

[Indexed as: Abdollahpour v. Banifatemi] Ahmad Reza Abdollahpour, Sima Abdollahpour and Hamid Abdollahpour, Applicants (Appellants) and Shakiba Sadat Banifatemi, Respondent (Respondent) Ontario Court of Appeal Docket: CA C59977 2015 ONCA 834 E.E. Gillese, R.A. Blair, David Brown JJ.A. Heard: October 20, 2015 Judgment: December 2, 2015 Estates and trusts –––– Gifts — Revocation and setting aside — Gift in con- templation of marriage –––– Iranian culture and tradition required groom’s family to make gift to bride’s family on occasion of wedding — Husband’s parents transferred 50 per cent interest in house to wife as gift and paid for cost of wedding — After husband and wife separated, husband and parents sought return of 50 per cent interest in house, repayment of cost of wedding and return of wedding gifts — Wife’s motion for summary judgment seeking order dismissing claims was granted — Husband and parents appealed — Appeal dismissed — There was no error in finding that transfer of interest in property to wife was irrevocable, unconditional gift — Motion judge applied proper test for determination of gift — It was open to conclude that terms of deed of gift itself, and evidence of negotiations leading up to its execution, confirmed intention that transfer was irrevocable and unconditional — Motion judge did not misapprehend evidence or make incorrect findings of fact that materially affected conclusion — Parties received independent legal advice during negotiations — It was open to motion judge to find that deed of gift was not subject to conditions that wife would not leave marriage and would continue to reside in property as matrimonial home — Even if wife’s father told husband’s father that wife would return interest in property if she left marriage, that statement did not affect result since wife’s father was not party to transaction and could not make representation binding wife — In light of s. 1(1) of Statute of Frauds, motion judge was correct to hold that verbal representation that wife would re-convey interest in property if she left marriage could create nothing more than estate at will and could be terminated at discretion of wife’s father or wife — It would be inconsistent with purposes of Statute of Frauds and with public policy need for certainty in real property transactions to imply term or condition into deed of gift based on general cultural norm or tradition — Motion judge did not err in refusing to set aside deed of gift on basis that it was obtained by fraud or undue 32 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

influence — There was no evidence that would justify finding that wife’s father made representation with fraudulent intent necessary to vitiate transaction — Husband’s parents were not coerced such that they had no realistic alternative but to agree to deed of gift. Civil practice and procedure –––– Summary judgment — Jurisdiction of court –––– Iranian culture and tradition required groom’s family to make gift to bride’s family on occasion of wedding — Husband’s parents transferred 50 per cent interest in house to wife as gift and paid for cost of wedding — After husband and wife separated, husband and parents sought return of 50 per cent interest in house, repayment of cost of wedding and return of wedding gifts — Wife’s motion for summary judgment seeking order dismissing claims was granted — Husband and parents appealed — Appeal dismissed — There was no error in finding that transfer of interest in property to wife was irrevocable, unconditional gift — Motion judge applied proper test for determination of gift — It was open to conclude that terms of deed of gift itself, and evidence of negotiations leading up to its execution, confirmed intention that transfer was irrevocable and unconditional — Motion judge did not misapprehend evidence or make incorrect findings of fact that materially affected conclusion — Parties received independent legal advice during negotiations — It was open to motion judge to find that deed of gift was not subject to conditions that wife would not leave marriage and would continue to reside in property as matrimonial home — Even if wife’s father told husband’s father that wife would return interest in property if she left marriage, that statement did not affect result since wife’s father was not party to transaction and could not make representation binding wife — In light of s. 1(1) of Statute of Frauds, motion judge was correct to hold that verbal representation that wife would re-convey interest in property if she left marriage could create nothing more than estate at will and could be terminated at discretion of wife’s father or wife — It would be inconsistent with purposes of Statute of Frauds and with public policy need for certainty in real property transactions to imply term or condition into deed of gift based on general cultural norm or tradition — Motion judge did not err in refusing to set aside deed of gift on basis that it was obtained by fraud or undue influence — There was no evidence that would justify finding that wife’s father made representation with fraudulent intent necessary to vitiate transaction — Husband’s parents were not coerced such that they had no realistic alternative but to agree to deed of gift. Civil practice and procedure –––– Summary judgment — Requirement to show no triable issue –––– Iranian culture and tradition required groom’s family to make gift to bride’s family on occasion of wedding — Husband’s parents transferred 50 per cent interest in house to wife as gift and paid for cost of wedding — After husband and wife separated, husband and parents sought return of 50 per cent interest in house, repayment of cost of wedding and return of wedding gifts — Wife’s motion for summary judgment seeking order dismissing Abdollahpour v. Banifatemi 33 claims was granted — Husband and parents appealed — Appeal dismissed — There was no error in finding that transfer of interest in property to wife was irrevocable, unconditional gift — Motion judge applied proper test for determination of gift — It was open to conclude that terms of deed of gift itself, and evidence of negotiations leading up to its execution, confirmed intention that transfer was irrevocable and unconditional — Motion judge did not misapprehend evidence or make incorrect findings of fact that materially affected conclusion — Parties received independent legal advice during negotiations — It was open to motion judge to find that deed of gift was not subject to conditions that wife would not leave marriage and would continue to reside in property as matrimonial home — Even if wife’s father told husband’s father that wife would return interest in property if she left marriage, that statement did not affect result since wife’s father was not party to transaction and could not make representation binding wife — In light of s. 1(1) of Statute of Frauds, motion judge was correct to hold that verbal representation that wife would re-convey interest in property if she left marriage could create nothing more than estate at will and could be terminated at discretion of wife’s father or wife — It would be inconsistent with purposes of Statute of Frauds and with public policy need for certainty in real property transactions to imply term or condition into deed of gift based on general cultural norm or tradition — Motion judge did not err in refusing to set aside deed of gift on basis that it was obtained by fraud or undue influence — There was no evidence that would justify finding that wife’s father made representation with fraudulent intent necessary to vitiate transaction — Husband’s parents were not coerced such that they had no realistic alternative but to agree to deed of gift. Torts –––– Fraud and misrepresentation — Duress and undue influence — Undue influence — Factors to be considered — Independent legal advice. Family law –––– Marriage — Validity of marriage — General principles –––– Iranian culture and tradition required groom’s family to make gift to bride’s family on occasion of wedding — Husband’s parents transferred 50 per cent interest in house to wife as gift and paid for cost of wedding — After husband and wife separated, husband and parents sought return of 50 per cent interest in house, repayment of cost of wedding and return of wedding gifts — Wife’s motion for summary judgment seeking order dismissing claims was granted — Husband and parents appealed — Appeal dismissed — There was no error in finding that transfer of interest in property to wife was irrevocable, unconditional gift — Motion judge applied proper test for determination of gift — It was open to conclude that terms of deed of gift itself, and evidence of negotiations leading up to its execution, confirmed intention that transfer was irrevocable and unconditional — Motion judge did not misapprehend evidence or make incorrect findings of fact that materially affected conclusion — Parties received independent legal advice during negotiations — It was open to motion judge to 34 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

find that deed of gift was not subject to conditions that wife would not leave marriage and would continue to reside in property as matrimonial home — Even if wife’s father told husband’s father that wife would return interest in property if she left marriage, that statement did not affect result since wife’s father was not party to transaction and could not make representation binding wife — In light of s. 1(1) of Statute of Frauds, motion judge was correct to hold that verbal representation that wife would re-convey interest in property if she left marriage could create nothing more than estate at will and could be terminated at discretion of wife’s father or wife — It would be inconsistent with purposes of Statute of Frauds and with public policy need for certainty in real property transactions to imply term or condition into deed of gift based on general cultural norm or tradition — Motion judge did not err in refusing to set aside deed of gift on basis that it was obtained by fraud or undue influence — There was no evidence that would justify finding that wife’s father made representation with fraudulent intent necessary to vitiate transaction — Husband’s parents were not coerced such that they had no realistic alternative but to agree to deed of gift. Cases considered by R.A. Blair J.A.: Austie v. Aksnowicz (1999), 1999 CarswellAlta 112, 232 A.R. 118, 195 W.A.C. 118, [1999] A.J. No. 93, 70 Alta. L.R. (3d) 154, [1999] 10 W.W.R. 713, 27 R.P.R. (3d) 35, 1999 ABCA 56 (Alta. C.A.) — considered Austie v. Aksnowicz (2000), 2000 CarswellAlta 174, 2000 CarswellAlta 175, 253 N.R. 197 (note), 255 A.R. 400 (note), 220 W.A.C. 400 (note), [1999] S.C.C.A. No. 172 (S.C.C.) — referred to Berdette v. Berdette (1991), 41 E.T.R. 126, 47 O.A.C. 345, 3 O.R. (3d) 513, 81 D.L.R. (4th) 194, 33 R.F.L. (3d) 113, 1991 CarswellOnt 280, [1991] O.J. No. 788 (Ont. C.A.) — considered Berdette v. Berdette (1991), 85 D.L.R. (4th) viii (note), 137 N.R. 388 (note), 55 O.A.C. 397 (note), [1991] S.C.C.A. No. 306, [1991] 3 S.C.R. v (note), 5 O.R. (3d) xii (note), 1991 CarswellOnt 6202, 1991 CarswellOnt 6203 (S.C.C.) — referred to McNamee v. McNamee (2011), 2011 ONCA 533, 2011 CarswellOnt 7168, 69 E.T.R. (3d) 38, 106 O.R. (3d) 401, 335 D.L.R. (4th) 704, 280 O.A.C. 372, 4 R.F.L. (7th) 13, [2011] O.J. No. 3396 (Ont. C.A.) — referred to Statutes considered: Statute of Frauds, R.S.O. 1990, c. S.19 Generally — referred to s. 1(1) — considered s. 4 — considered Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to Abdollahpour v. Banifatemi R.A. Blair J.A. 35

R. 16(6) — considered Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 20 — considered R. 20.04 — considered R. 20.04(2.1) [en. O. Reg. 438/08] — considered

APPEAL by husband and parents from judgment granting wife summary judgment reported at Abdollahpour v. Banifatemi (2014), 2014 ONSC 7273, 2014 CarswellOnt 18296, 58 R.F.L. (7th) 40, 6 E.T.R. (4th) 134 (Ont. S.C.J.), relating to interest in property.

Evan Moore, for Appellants Kevin Kavanagh, for Respondent

R.A. Blair J.A.: Background 1 On March 25, 2012, a young Iranian couple, Ahmad Reza Abdol- lahpour (“Reza”) and Shakiba Sadat Banifatemi, were married in Ottawa. They separated in December 2013, when Shakiba moved out of the marriage and out of the home where they had been living with Reza’s parents. 2 It is the custom in Iranian culture and tradition for the groom or the groom’s family to provide a dowry or mahr to the bride on the occasion of the wedding. In this case, Reza’s parents, the appellants Sima and Hamid Abdollahpour, transferred to Shakiba a 50% interest in a house they owned at 4 Leona Avenue in Ottawa by way of a Deed of Gift. 3 Following the breakdown of the marriage, Reza commenced divorce proceedings. Along with Sima and Hamid, he also sought to have the 50% interest in the property transferred back to them. 4 The appellants’ principal argument was, and is, that the transfer was made as part of the dowry or mahr and - according to Iranian culture and tradition - was therefore subject to a condition that Shakiba not leave the marriage and that, if she did, the property would be transferred back to the donors. They also argued that Shakiba’s father had promised Reza’s father that the property would be returned if Shakiba left the marriage, that Shakiba had entered the marriage with the fraudulent intent to obtain a 50% interest in the property and in order to be sponsored as a permanent resident in Canada, and that Sima and Hamid had signed the Deed of Gift under duress or as a result of undue influence. In addition, Sima 36 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

and Hamid sought repayment of the costs of the wedding and the return of all wedding gifts. 5 Shakiba brought a motion for summary judgment dismissing the claims on the ground that the transfer of the 50% interest in the property was an irrevocable and unconditional gift. She denied the other allegations. 6 In thorough and careful reasons delivered on December 31, 2014, Justice Robert J. Smith granted summary judgment in favour of Shakiba. 7 Reza, Sima and Hamid appeal from the judgment only as it relates to the property interest. On appeal, they seek to introduce fresh evidence in the form of a translated copy of the marriage contract, in which the 50% interest in the property is listed as part of the dowry, and an expert report from an Islamic scholar confirming that, in certain circumstances, a dowry (or mahr, as it is called in the Islamic tradition) is to be returned by the wife upon the breakdown of the marriage and opining on what he believes was the intention of the parties at the time of the transfer. 8 I agree with the motion judge, and would dismiss the appeal for the following reasons.

Discussion and Analysis Fresh Evidence 9 I do not need to decide whether the proposed fresh evidence meets the necessary requirements for admission on appeal - although I am in- clined to the view that it does not - because even if admitted, it would not affect the outcome of the appeal, in my view. 10 The issue is not whether Iranian culture or tradition features the characteristics explained by the expert, but whether the parties agreed to the transfer being subject to the conditions imposed by that culture or tradition. An expert cannot give an opinion as to what the parties’ intentions were - the very issue the motion judge had to decide - which is what the proposed expert purported to do here.

The Judge’s Role on the Summary Judgment Motion 11 At the time the summary judgment motion was heard, the Family Law Rules, O. Reg. 114/99 respecting summary judgment had not yet been amended to conform to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It was unclear whether the motion judge had the expanded powers to weigh evidence, evaluate credibility and draw rea- Abdollahpour v. Banifatemi R.A. Blair J.A. 37

sonable inferences from the evidence that characterize r. 20.04(2.1). The motion judge therefore conducted his analysis both on the basis of r. 16(6) of the Family Law Rules (which requires only that the court determine whether there is a genuine issue requiring a trial of a claim or defence) and on the basis of the provisions in r. 20.04. He concluded that, on either analysis, there was no genuine issue requiring a trial with regard to whether the transfer constituted an irrevocable and unconditional gift. 12 The Family Law Rules have since been amended to conform with r. 20.04(2.1), and the appellants now accept, for the purposes of the motion and this appeal, that the motion judge and this Court are entitled to view the matter from the perspective of the type of expanded powers that are provided for under r. 20.04(2.1).

Was the Deed of Gift Conditional or Unconditional? 13 I see no error in the motion judge’s finding that the transfer of the 50% interest in the property to Shakiba was an irrevocable, unconditional gift and that no genuine issue requiring a trial was raised on the record with respect to that issue. 14 It is accepted that the motion judge applied the proper test for the determination of a gift: an intention on the part of the donor to make a gift without consideration or expectation of remuneration; an acceptance of the gift by the donee; and a sufficient act of delivery or transfer of the property to complete the transaction. See McNamee v. McNamee, 2011 ONCA 533, 335 D.L.R. (4th) 704 (Ont. C.A.). 15 The appellants do not contest that the second and third criterion were satisfied in the circumstances of this case. They submit, however, that the motion judge erred in finding that Sima and Hamid’s intention was to make an unconditional gift of the property to Shakiba. Instead, they argue, the intention was to provide a dowry or mahr to Shakiba - something that is distinct from an irrevocable gift in Iranian culture and that was subject to the condition that the property would be returned to the donors if Shakiba divorced Reza or left the marriage. 16 I do not accept this submission. 17 Taking a hard look at the record, as he did, it was open to the motion judge to conclude that the terms of the Deed of Gift itself, as well as the evidence of the negotiations leading up to its execution - including the exchanges between the lawyers, the evolution of the substance of the document, and the draft documentation preceding the final Deed of Gift - 38 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

all confirmed the intention that the transfer was irrevocable and unconditional. In my view, the motion judge did not misapprehend the evidence or make incorrect findings of fact that materially affected his conclusions in this regard. 18 The parties each received independent legal advice during the negotiations. Ms. Makooli represented Sima and Hamid. Shakiba’s brother, Shahab, was the negotiator for the bride’s family and he was represented by Mr. Kavanagh. 19 The original proposal was that a one-third interest in the property would be transferred by Sima and Hamid in trust for Reza and Shakiba jointly. A draft trust declaration and agreement reflecting this was prepared by Ms. Makooli. It said nothing about the trust being revocable on the failure to comply with any conditions regarding the marriage. 20 In a subsequent exchange of emails between the lawyers, Mr. Kava- nagh insisted that the gift be irrevocable and in an email dated February 28, 2012, Ms. Makooli confirmed that “ultimately, this is a wedding gift to both kids” (emphasis added). On March 1, 2012, Ms. Makooli sent a revised Deed of Gift providing that Sima and Hamid wished to convey an undivided one-third interest in the property to Reza and Shakiba jointly and irrevocably. 21 Shakiba’s father rejected the offer of a one-third interest. He sought a 50% interest for Shakiba, and the parties ultimately agreed to this proposal. Mr. Kavanagh took the second draft deed prepared by Ms. Makooli and amended it to remove Reza’s name as a transferee - Sima and Hamid had decided they did not want a 50% interest to be transferred to Reza - and to provide that a 50% interest in the property be gifted to Shakiba. A copy of this amended draft was sent to Sima on March 12, 2012. 22 On March 19, 2012, Shakiba met with Sima and Hamid at the offices of a lawyer, Mr. Nadon, to sign the necessary documents for the transfer. Included in that documentation was an Acknowledgement that “[t]he effect of the Documents [including the Transfer document] ha[d] been fully explained to [them]” (emphasis added) and a Direction to engross the deed or transfer to Shakiba “as Tenant in Common part 50% interest”. The Deed of Gift itself stated that “the Grantors wish to convey to the Grantee, irrevocably, a fifty per cent (50%) title interest in the said lands” (emphasis added). Nowhere in the exchanges between the lawyers leading up to the transfer, nor in any of the documents prepared to complete it, is there mention of any conditions attaching to the transfer, other than perhaps the marriage itself. Abdollahpour v. Banifatemi R.A. Blair J.A. 39

23 After a discussion between the families on March 23, 2012, in which Shakiba’s father - who was then in Canada - insisted that the Deed of Gift be registered or the marriage would not proceed, Sima instructed Mr. Nadon to register the Deed, which was done on March 23, 2012. 24 Summarizing this evidence, the motion judge found that the Deed of Gift was not subject to the conditions that Shakiba would not leave the marriage and would continue to reside in the property as a matrimonial home for the following reasons: (a) the intentions of the parties were clearly stated in the Deed of Gift, which was prepared to clarify and remove any uncertainty about the gift, in addition to registering the transfer of a 50% interest in the property to Shakiba; (b) the parties reduced the terms of the gift to writing in the Deed of Gift document, which did not mention any conditions; (c) none of the written documents prepared by the lawyers acting for the parties to complete the gift mentioned that any such conditions applied to the gift; and (d) the husband’s parents signed the documents confirming the gift with the benefit of independent legal advice. 25 These findings were entirely open to the motion judge on the record. Apart from the statement of Hamid that Shakiba’s father had promised that the property would be returned to Sima and Hamid if Shakiba left the marriage - which the motion judge later analysed and to which I will return in a moment - and apart from Sima and Hamid’s own self-serving, after-the-fact testimony, there is no evidence respecting any such term or condition in the transfer.

The Stated Representation 26 The motion judge found, on the basis of the evidence he reviewed, that it was “unlikely” Shakiba’s father had represented to Reza’s father that Shakiba would return the interest in the property if she left the marriage. For the purposes of his analysis, however, he proceeded on the basis that there was such a verbal representation. 27 He concluded that even if the statement had been made, it did not affect the result for two reasons. First, Shakiba’s father was not a party to the transaction (or to the proceedings) and such a representation could not bind Shakiba, who is an adult in control of her own decisions and who, on the evidence, had not been told of the representation, much less 40 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

agreed to be bound by it. I agree. Secondly, the motion judge concluded that a verbal representation or promise to transfer Shakiba’s interest in the land back to Reza’s parents would be ineffective in any event because of the provisions of ss. 1(1) and 4 of the Statute of Frauds, R.S.O. 1990, c. S.19. I do not need to deal with the motion judge’s treatment of s. 4 because I agree with his conclusion that s. 1(1) is an effective bar to the appellants’ argument.

The Statute of Frauds 28 Sections 1(1) of the Statute of Frauds states: Every estate or interest of freehold and every uncertain interest ... in ... lands ... shall be made or created by a writing signed by the parties making or creating the same, or their agents thereunto lawfully au- thorized in writing, and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect. [Emphasis added.] 29 In the face of this provision, the motion judge was correct to hold that a verbal representation that Shakiba would re-convey her interest in the property if she left the marriage could create nothing more than an estate at will and could therefore be terminated at the discretion of Shakiba’s father (or, presumably, of Shakiba). 30 Moreover, one of the purposes of the writing requirement in s. 1(1) of the Statute of Frauds is to avoid the very kind of difficulty that has arisen here. As the Alberta Court of Appeal observed in Austie v. Aksnowicz, 1999 ABCA 56 (Alta. C.A.), at para. 52, leave to appeal refused, (2000), [1999] S.C.C.A. No. 172 (S.C.C.), the “whole point of the Statute of Frauds is to provide written corroboration of a disputed oral deal.” 31 Accepting for the purposes of this discussion that the marriage contract is admitted as fresh evidence, the dowry provision in it states: Dowry: One volume of Holy Quran, one rock candy, one mirror and two chandeliers, one white rose, and three parts [out of six parts] of a residential house at: 4 Leona Ave., Ottawa, Ontario. [Emphasis added.] 32 The dowry provision does not disclose, either expressly or by necessary implication, what the appellants seek to establish as the additional essential term of the transfer by Deed of Gift - namely, the term or condition calling for re-conveyance of the property in certain circumstances. That the property is referred to as part of the bride’s dowry and the Abdollahpour v. Banifatemi R.A. Blair J.A. 41

dowry is part of the marriage contract, and that there may be general Iranian cultural norms and traditions relating to such marriages, is not enough, in my opinion. 33 Even if a marriage is entered into in the context of the cultural norms and traditions of a couple and their families, the details of how those cultural norms and traditions are to apply will inevitably vary from marriage to marriage, thus rendering the terms of the conveyance in question difficult to ascertain in myriad individual cases. It would be inconsistent with the purpose of the Statute of Frauds and with the valid public policy need for certainty in real property transactions to imply a term or condition into the Deed of Gift based on a general cultural norm or tradition and the mere reference to the property in question under the heading “dowry” in the marriage contract. 34 A wide variety of cultures, and their norms and traditions, form an integral part of the Canadian mosaic. They cannot simply be imported into a transaction involving the transfer of real property by reference to a concept such as “dowry”, which forms a part of a particular culture or tradition. If families of the bride and groom in circumstances such as these wish to incorporate such a concept into the transfer of property to the bride as part of her dowry, it is easy enough for them to say with clarity in the Deed of Gift expressly what it is that they intend with respect to the terms of the transfer. The parties did not do so in this case. 35 If ambiguous references were enough to incorporate cultural practices and traditions into a real property transaction, as the appellants seek to do here, there would be a danger of underlying expectations and motivations arising from the cultural context easily becoming conflated with intention. It is the parties’ intention and their actual agreement that must be ascertained. Was the transaction a gift and, if so, what were the terms and conditions, if any, attached to that gift? 36 Finally, even if the appellant parents had an underlying motivation for the transfer and some unarticulated “expectation” in relation to it, arising out of their Iranian culture and tradition, a valid gift, once made, cannot be revoked or retracted and the failure of a donee to fulfill a donor’s expectations does not vitiate a valid gift: see Berdette v. Berdette (1991), 81 D.L.R. (4th) 194 (Ont. C.A.), at pp. 200-201, leave to appeal refused, [1991] S.C.C.A. No. 306 (S.C.C.). The Court also observed in the Berdette case, at p. 199, that it is not “the task of the court ... to correct a possible mistake of judgment on the appellant’s part, but to ascertain the appellant’s intention at the time of the transactions with which we are 42 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

concerned.” That is what the motion judge did here and I agree with his analysis.

Undue Influence and Fraud 37 The motion judge also rejected the appellants’ argument that the Deed of Gift should be set aside on the basis that it had been obtained by way of undue influence or fraud. 38 In oral argument, counsel advised that the appellants no longer seek to rely on their position below - rejected by the motion judge - that Shakiba entered into the marriage with the fraudulent intention of obtaining a 50% interest in the property and as a marriage of convenience in order to obtain permanent residency status in Canada. They continue to argue that she obtained the 50% interest in the property through the fraudulent intent or undue influence of her family, however. To establish undue influence, they rely on the fact that Shakiba’s father advised Reza’s parents a few days before the wedding that, if the Deed of Gift was not registered, the wedding would not go ahead. During oral argument, the submission was made that the alleged false representation attributed to Shakiba’s father (that the property interest would be re-conveyed if Shakiba left the marriage) in some way played into the undue influence claim as well. 39 The motion judge rejected the submission that Sima and Hamid had signed the Deed of Gift under duress or as a result of undue influence exercised on them by Shakiba and her family. There was ample evidence to support this conclusion. 40 The draft Deed of Gift - clearly indicating that the gift was to be irrevocable and containing no indication that it was subject to any terms or conditions - was sent to Sima approximately two weeks before the wedding. Both Sima and Hamid are sophisticated business people: Sima is a real estate developer and Hamid operates a jewellery business in Ottawa. As previously discussed, they had legal representation when they were negotiating the terms of the transfer, and they both attended at the offices of an independent solicitor, Mr. Nadon, where they signed the Deed of Gift and an Acknowledgement stating that they were fully advised of the effect of the transfer. 41 While it is not contested that Shakiba’s father advised Sima and Hamid that the wedding would not go ahead if the Deed of Gift was not registered, that stance alone is insufficient to amount to duress or undue influence in the circumstances. Nobody complained about it at the time. Abdollahpour v. Banifatemi David Brown J.A. 43

Sima and Hamid went ahead with the registration of the Deed of Gift as outlined above. To amount to duress or undue influence, the impugned conduct must result in such a coercion of will or pressure on the recipient that he or she has no realistic alternative but to submit to it: see Berdette, at p. 201. That was not the case here. 42 Returning to the allegedly false representation made by Shakiba’s father, there is simply no evidence in the record that would justify a finding that - assuming the representation was made at all - it was made with the fraudulent intent necessary to vitiate the transaction. Nor is there any evidence to support the suggestion that Sima and Hamid were so coerced or that the representation created such pressure that they had no realistic alternative but to agree to the Deed of Gift. 43 The motion judge properly rejected the undue influence argument. I agree and reject the appellants’ submissions on fraudulent intent as well.

Disposition 44 For all of the foregoing reasons, I would dismiss the appeal. 45 Shakiba is entitled to her costs of the appeal, fixed in the amount of $9,559.60, all inclusive.

E.E. Gillese J.A.:

I agree

David Brown J.A.:

I agree Appeal dismissed. 44 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Children’s Aid Society of Toronto v. M. (P.)] Children’s Aid Society of Toronto, Respondent (Applicant) and P.M., Appellant (Respondent) Ontario Court of Appeal Docket: CA C60392 2015 ONCA 695 Alexandra Hoy A.C.J.O., K.M. Weiler, G. Pardu JJ.A. Heard: October 5, 2015 Judgment: October 19, 2015 Family law –––– Children in need of protection — Application for permanent custody — Factors to be considered — Best interests of child –––– Child was four years old and had been in continuous care and custody of Children’s Aid Society (Society) since she was five months old — Mother was incarcerated for fraud and supervision order placed child with father — Society found father breached conditions of supervision order and had been dishonest with Soci- ety — Father was incarcerated for his role in fraud and later placed on probation — Child was made Crown ward for purpose of adoption without parental access — Father’s appeal from decision making child was Crown ward was dismissed — Father brought further appeal and sought to adduce fresh evidence including plan of care — Appeal dismissed — Trial judge made no palpable and overriding errors in determining facts — Fresh evidence did not affect disposition of appeal — It continued to be in child’s best interests to remain Crown ward with no access and to be adopted by foster mother — Plan of care was not compelling — Fresh evidence did not provide any further proof of meaningful and beneficial relationship between him and child — Fresh evidence did not include proof that continued access would not prejudice possibility of adoption — Child’s emotional ties were to her foster mother. Cases considered: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) (1994), 2 R.F.L. (4th) 313, [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 18 O.R. (3d) 160 (note), 1994 CarswellOnt 376, 1994 CarswellOnt 1157, [1994] S.C.J. No. 37, EYB 1994-67657, 18 O.R. (3d) 160 (S.C.C.) — followed Children’s Aid Society of Niagara Region v. C. (J.) (2007), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, 223 O.A.C. 21, 281 D.L.R. (4th) 328, [2007] O.J. No. 1058 (Ont. Div. Ct.) — referred to Children’s Aid Society of Toronto v. M. (P.) Per curiam 45

Children’s Aid Society of Oxford County v. C. (W.T.) (2013), 2013 ONCA 491, 2013 CarswellOnt 10258, 308 O.A.C. 246, 33 R.F.L. (7th) 259, 288 C.R.R. (2d) 144, [2013] O.J. No. 3438 (Ont. C.A.) — followed Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 s. 59(2.1) [en. 2006, c. 5, s. 17(2)] — considered s. 69(6) — considered

APPEAL by father from decision making child Crown ward for purposes of adoption, without parental access.

Lance Carey Talbot, for Appellant, Respondent Erin Rose, for Respondent, Applicant

Per curiam: Overview 1 The appellant’s daughter — born November 19, 2011 — is now almost four years old. She has been the subject of child protection proceedings almost since she was born. She has been in the continuous care and custody of The Children’s Aid Society of Toronto (the “CAS”) since she was just under five months old, and has resided with her foster mother — and proposed adoptive parent — throughout that time. 2 The finding that the appellant’s daughter was a child in need of protection was made on an uncontested basis on June 13, 2012. A status review was held when the child was two years old. On April 29, 2014, the trial judge made the child a Crown ward, for the purpose of adoption, without parental access. The appellant appealed that decision to the Su- perior Court of Justice, arguing that the trial judge made palpable and overriding errors in determining the facts on which he relied in making his order. 3 On March 31, 2015, the appeal judge dismissed the appeal, providing detailed reasons addressing each of the errors allegedly made by the trial judge. The appellant now appeals further to this court. He renews the arguments rejected by the appeal judge. He also brings a motion for leave to adduce fresh evidence on appeal and argues that this evidence compels a different conclusion than that arrived at by the trial judge. He seeks a custody order in his favour or an order of Crown wardship with access. 46 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

4 We agree with the appeal judge that the trial judge made no palpable and overriding errors in determining the facts. The fresh evidence does not affect the disposition of the appeal. It continues to be in the child’s best interests to remain a Crown ward with no access and to be adopted by her foster mother. Accordingly, we dismiss the appeal. Background 5 Some background provides the necessary context. 6 The child’s mother fraudulently impersonated a nurse on multiple occasions and the child’s father fronted the employment agency that hired her out to work as an unqualified nurse. The child was born while the mother was incarcerated for her fraudulent activity. The appellant cared for the child until she was just under five months of age when he too was incarcerated for his role in the fraud. 7 While it appeared to the CAS that the appellant was able to care appropriately for the child during that period, the CAS was concerned that the mother posed a risk to the child as a result of her history of unstable mental health, a pattern of failure to attend to the medical needs of her children, her lack of cooperation with the CAS and the fact that she was serving a substantial custodial sentence. As a result, the Supervision Or- der placing the child with the appellant included conditions relating to the mother and her access to the child, and the appellant’s co-operation with the CAS. 8 The trial judge found that the appellant breached those conditions and was dishonest with the CAS. 9 When the appellant was incarcerated for his role in the fraud, there was no one to care for the child. She was made a CAS ward and placed in the care of her foster mother. 10 In March 2013, the appellant was released on probation and began exercising access to the child. He opposed the Crown wardship order sought by the CAS and, as indicated above, the matter proceeded first to trial and was then unsuccessfully appealed. 11 The appellant’s probation order prohibited any contact with the mother.

Alleged Palpable and Overriding Errors 12 The appeal judge’s thorough reasons were responsive to the grounds of appeal raised by the appellant. As we have indicated, we agree with the appeal judge that the trial judge did not make any of the alleged pal- Children’s Aid Society of Toronto v. M. (P.) Per curiam 47

pable and overriding errors. It is unnecessary for us to repeat the appeal judge’s detailed analysis.

The Proposed Fresh Evidence 13 The appellant submits that the proposed fresh evidence compels this court to order that he regain custody of the child for the following reasons: (a) it dispels the trial judge’s concern about the impact of the appellant’s and the mother’s criminal conduct on the safety of the child: time has passed and the appellant and the mother are attempting to rebuild a new life together; (b) it addresses the trial judge’s concern regarding his unusual degree of social isolation; and (c) his Plan of Care addresses the needs of the child. 14 The appellant further submits that if custody is not ordered in his favour, the fact — not disclosed at trial — that the child’s mother is Jewish weighs in favour of an access order. He argues that, because the child is biracial, as well as half-Jewish, providing access to the appellant would permit the child to appreciate her unique cultural heritage. 15 It is therefore helpful to consider what the fresh evidence discloses. 16 The evidence reveals that the appellant breached his probation order by continuing an intimate relationship with the child’s mother. This relationship resulted in the birth of another child (“P”) in early 2015. The appeal judge was not aware of this fact. 17 Following P’s birth, the mother voluntarily placed P into the CAS’ care and there is an ongoing proceeding in respect of her custody. The appellant is currently exercising access to P for one hour per week. The mother has, separately, been exercising access to P. The appellant deposes that he and the mother plan to reunite and raise P together as a family once his probation order prohibiting contact with the mother expires on February 4, 2016.1 He wants the child who is the subject of these proceedings to join them. 18 The appellant provides evidence that he has recently reached out to a community Family Support Organization that can provide help and support with parenting; has identified an 8-week therapeutic play group that can help the child if she is returned to his care; and, in the past month, has gone to a psychologist for an assessment. He says he is committed to

1 The appeal judge indicated that the restriction expires in April, 2016. 48 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

working with a psychologist to ensure that his parenting of the child is strong. 19 The fresh evidence also includes an affidavit from the mother. She deposes that she has been working on addressing many of the issues identified by the CAS and hopes to be slowly integrated into the child’s life if the child is returned to the appellant’s care. The mother also disclosed that she is Jewish and would raise the child in that faith. 20 Finally, the fresh evidence includes a Plan of Care for the child, prepared by the appellant.

Admission and Effect of Fresh Evidence 21 Section 69(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) sets out that the court may receive further evidence relating to events that took place after the decision being appealed from. 22 Fresh evidence should be admitted in child protection proceedings if: (a) it could not have been adduced before; (b) it is highly relevant in that it enables the court to make determinations on an accurate picture of the situation at hand; (c) it is potentially decisive as to the child’s best interests; (d) it is credible; (e) it is uncontroverted; and (f) it bridges the gap between the evidence submitted in prior hearings and the appeal: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.), at p. 190. 23 A flexible standard should be adopted for the admission of fresh evidence in family law cases involving children in circumstances where accurate and up-to-date information concerning the best interests of the child, when considered with the evidence adduced at trial, might reasonably affect the outcome of the appeal: Children’s Aid Society of Oxford County v. C. (W.T.), 2013 ONCA 491, 308 O.A.C. 246 (Ont. C.A.), at para. 43. 24 Despite this flexible standard, we have reservations about the admis- sibility of the fresh evidence. It largely consists of affidavits of the appellant and the mother. Both have been convicted of fraud and demonstrated an ongoing pattern of deception and non-compliance with court orders. We have concerns about the credibility and reliability of parts of the fresh evidence.2 Furthermore, some of the evidence could have been ad-

2 We note that the affidavit filed by the mother — who is Kenyan — in support of her motion for an extension of time to file a notice of appeal of the decision Children’s Aid Society of Toronto v. M. (P.) Per curiam 49

duced before: the religious heritage of the child could have been raised at trial and the birth of P. could have been disclosed to the appeal judge. However, portions of it — including the evidence of non-compliance with the probation order and the birth of P — are relevant and uncontroverted. 25 In any event, the fresh evidence falls far short of warranting interference with the trial judge’s conclusion that Crown wardship without access is in the best interests of the child. 26 In determining whether Crown wardship was appropriate, the trial judge applied the test set out in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) and recently confirmed by this court in Children’s Aid Society of Oxford County v. C. (W.T.). This test requires a court to assess whether the child continues to be in need of protection and, if so, which of the available range of orders is in the child’s best interests. As the appeal judge noted, the appellant’s relationship with the mother lied at the heart of the CAS’ and the trial judge’s concerns about returning the child to the appellant’s care. That concern was not limited to the fact that, as a result of the appellant and the mother being “partners in crime”, the child was left without a responsible adult to care for her. The fresh evidence reinforces the appellant’s intention to reunite with the mother and does not dispel the very serious concerns that the CAS and the trial judge expressed with respect to the mother. 27 Further, despite the proposed Plan of Care and the efforts recounted in the fresh evidence, we are not persuaded that the appellant has the necessary support to raise the child. The Plan of Care is not compelling. It contemplates that the appellant would continue to work and would immediately send the freshly uprooted child to a full-time daycare. He names someone as a back-up caregiver to provide support to him until he can reunite with the mother, but no meaningful details are provided and there is no corroboration from the named individual. The appellant is only now committing to work with a psychologist and the mother’s pro- fessed steps to address the CAS’ concerns are also very recent. As the trial judge commented, multiple issues of parental dysfunction cannot quickly change.

of the Superior Court of Justice appeal judge disclosed both that she is currently on bail from an immigration hold and that she received an unfavourable parenting capacity assessment in June, 2015 (albeit one that the mother contests). These material facts were not disclosed in the proposed fresh evidence. 50 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

28 Nor does the fresh evidence warrant interfering with the trial judge’s decision to deny an access order in favour of the appellant. There is a presumption against access where a child has been made a Crown ward. The party seeking access must rebut that presumption by satisfying both elements of s. 59(2.1) of the CFSA: he must show that his relationship with the child is beneficial and meaningful to the child and that the ordered access will not impair the child’s future opportunities for adoption. 29 In order to satisfy the first requirement, the party seeking access must prove, on a balance of probabilities, that his existing relationship with the child brings a significant, positive advantage to the child. It is not sufficient that there are some positive aspects to the relationship: Children’s Aid Society of Niagara Region v. C. (J.) (2007), 281 D.L.R. (4th) 328 (Ont. Div. Ct.), at para. 29. At trial, the appellant described his relationship with the child as follows: “[s]he’s very comfortable with me. But she’s not attached to me, I’m aware of that.” The trial judge found that the appellant had not established much more than a friendly relationship with the child and that there was no evidence in this case capable of meeting the “meaningful and beneficial” standard. Moreover, the trial judge concluded that the appellant had not met his onus under the second branch of s. 59(2.1) to establish that access would not impair the child’s opportunity for adoption. 30 The appeal judge found that the evidence from continuing post-trial access visits did not disclose any dramatic development in the appellant’s relationship with the child that warranted reconsideration of the trial judge’s conclusion regarding that relationship. The appeal judge also agreed that the appellant had not demonstrated that his continued access would not prejudice the possibility of adoption. 31 The fresh evidence adduced by the appellant does not provide any further proof of a “meaningful and beneficial” relationship between him and the child, as required by s. 59(2.1) of the CFSA. Furthermore, the fresh evidence does not include proof that continued access would not prejudice the possibility of adoption. 32 The child should not be left in limbo. She is nearly four and her emotional ties are to her foster mother. The risk to the child of a disruption of her secure and stable relationship with her foster mother and the permanency it affords is obvious. It remains in the child’s best interests to be a Crown ward without continuing access by the appellant. 33 The appeal is accordingly dismissed. Appeal dismissed. Jung v. Johnson 51

[Indexed as: Jung v. Johnson] Alana Jung, Applicant and Amir Johnson, Respondent Ontario Superior Court of Justice Docket: FS-15-19905 2015 ONSC 6734 S.M. Stevenson J. Heard: October 13, 2015 Judgment: October 30, 2015* Family law –––– Support — Child support under federal and provincial guidelines — Interim award –––– Woman was 25-year-old full-time student pursuing diploma in early childhood education, and man was 28-year-old professional basketball player — Parties had one child, born September 2013 — Man had been earning US$6 million per year plus endorsements but recently signed contract for US$12 million for one year with second year at team option — In October 2014, woman brought motion for interim child support in amount of $50,000 per month, retroactive to child’s date of birth — She claimed child-related expenses of $18,474 per month including rent or mortgage, car insurance, vacations, food and activities — She also wanted to retain services of nanny and save $40,000 per month for home and child’s future — Woman alleged concerns, given nature of man’s employment, that man’s income would not remain high for foreseeable future — Man was ordered to pay interim child support of $28,000 per month beginning October 2014 — Based on man’s current income, presumptive quantum of support under provincial Child Support Guidelines was $116,431 per month — While $28,000 per month was well below that, it would cover child-related expenses claimed by woman, except savings, and would be appropriate pending trial on without prejudice basis — Child was born after parties’ relationship ended and pattern of spending involving child was never established — Parties had differing views as to standard of living to which child was entitled and issues such as savings for child and how this issue would be affected by length of father’s career should be canvassed at trial — Father was also covering child’s Montessori school fees — Amount of $28,000 proposed by father on without prejudice basis pending resolution of issues at trial more than covered child expense budget for child prepared by woman, without savings component, and allowed for additional $10,000 per

* Additional reasons at Jung v. Johnson (2015), 71 R.F.L. (7th) 69, 2015 ONSC 8098, 2015 CarswellOnt 19925 (Ont. S.C.J.). 52 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

month — How woman chose to use those funds pending trial would be up to her. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Interim support — Entitlement –––– Woman was 25-year-old full-time student pursuing diploma in early childhood education, and man was 28-year-old professional basketball player — Parties had one child, born Sep- tember 2013 — Man had been earning US$6 million per year plus endorsements but recently signed contract for US$12 million for one year with second year at team option — Woman brought motion for relief including interim spousal support in amount of $50,000 per month on basis that she lived with man for 18- month period — Man acknowledged woman had been his girlfriend, but denied they had ever cohabited — Credibility issues could not be determined on motion — Man’s failure to have his live-in assistant provide affidavit supporting man’s position at interim stage did not lead to conclusion of adverse inference against man — Woman did not provide any supporting affidavits from her mother or other family members to support her position — Both parties would require third-party evidence at trial in order to corroborate their evidence — In- terim spousal support was not ordered as it was not possible to conclude on conflicting evidence that woman established prima facie case for spousal support — Although there was no question that parties had child together, evidence on which woman relied to establish that parties cohabited and were in relationship of some permanence was disputed by man — Much of evidence on which woman relied could also support man’s position that parties were in boyfriend- girlfriend relationship but never resided together. Family law –––– Costs — Support –––– Woman was 25-year-old full-time student pursuing diploma in early childhood education, and man was 28-year-old professional basketball player — Parties had one child, born September 2013 — Man had been earning US$6 million per year plus endorsements but recently signed contract for US$12 million for one year with second year at team option — Woman brought motion for relief including interim spousal support and interim child support — Woman sought interim costs and disbursements in amount of $75,000 — Woman acknowledged that man previously advanced sum of $15,000 to assist with legal costs, and contended that her counsel returned one-half of that amount to her as she was not receiving proper support from man — No costs award was made — There was no current evidence as to amount of fees and disbursements owing by woman to her lawyers — Only reference to current situation was put in woman’s factum but there was no sworn evidence before court on her behalf or anyone else on her behalf to assist court in determining costs issue — It was not appropriate to grant costs award on interim motion without proper supporting evidence. Jung v. Johnson 53

Cases considered by S.M. Stevenson J.: Francis v. Baker (1999), [1999] S.C.J. No. 52, 1999 CarswellOnt 2734, 1999 CarswellOnt 2948, 44 O.R. (3d) 736 (headnote only), 177 D.L.R. (4th) 1, 246 N.R. 45, 50 R.F.L. (4th) 228, 125 O.A.C. 201, [1999] 3 S.C.R. 250 (S.C.C.) — followed Jung v. Johnson (2015), 2015 ONSC 4778, 2015 CarswellOnt 11448 (Ont. S.C.J.) — referred to M v. H (1996), 31 O.R. (3d) 417, (sub nom. M. v. H.) 142 D.L.R. (4th) 1, 25 R.F.L. (4th) 116, (sub nom. M. v. H.) 96 O.A.C. 173, (sub nom. M. v. H.) 40 C.R.R. (2d) 240, 1996 CarswellOnt 4723, [1996] O.J. No. 4419, 145 D.L.R. (4th) vii (Ont. C.A.) — considered M v. H (1999), 171 D.L.R. (4th) 577, (sub nom. M. v. H.) 238 N.R. 179, 1999 CarswellOnt 1348, 1999 CarswellOnt 1349, (sub nom. M. v. H.) 43 O.R. (3d) 254 (headnote only), (sub nom. M. v. H.) 62 C.R.R. (2d) 1, (sub nom. M. v. H.) 121 O.A.C. 1, 46 R.F.L. (4th) 32, [1999] S.C.J. No. 23, (sub nom. Attorney General for Ontario v. M. & H.) 1999 C.E.B. & P.G.R. 8354 (headnote only), (sub nom. M. v. H.) [1999] 2 S.C.R. 3, 7 B.H.R.C. 489, 43 O.R. (3d) 254, 43 O.R. (3d) 254 (note) (S.C.C.) — referred to R. v. R. (2002), 2002 CarswellOnt 902, 24 R.F.L. (5th) 96, 211 D.L.R. (4th) 403, 58 O.R. (3d) 656, [2002] O.J. No. 1095, 159 O.A.C. 46 (Ont. C.A.) — considered Simon v. Simon (1999), 1999 CarswellOnt 3863, 1 R.F.L. (5th) 119, 127 O.A.C. 17, 46 O.R. (3d) 349, 182 D.L.R. (4th) 670, [1999] O.J. No. 4492 (Ont. C.A.) — considered Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 s. 29 “spouse” — considered s. 29 “spouse” (a) — considered s. 29 “spouse” (b) — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 24(12) — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Sched. I, s. 4(a) — referred to Family Law Act, R.S.O. 1990, c. F.3 Child Support Guidelines, O. Reg. 391/97 Generally — referred to s. 3(1) — considered s. 4 — considered 54 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

s. 4(b) — considered

MOTION by mother for interim child support and interim spousal support, and interim costs and disbursements.

Harold Niman, Richard Niman, for Applicant Grant Gold, for Respondent

S.M. Stevenson J.: Introduction 1 The applicant, Alana Jung (“Ms. Jung”), seeks an order for interim child support in the amount of $50,000 per month retroactive to the date of birth of the parties’ daughter, Amelia Johnson, born September 18, 2013; interim spousal support in the amount of $50,000 per month retroactive to September 18, 2013; interim costs and disbursements in the amount of $75,000 and costs on a full indemnity basis. Counsel for Ms. Jung advised the court that if the relief sought with respect to interim child and spousal support is granted, Ms. Jung is not pursuing interim costs and disbursements. 2 The respondent, Amir Johnson (“Mr. Johnson”), is opposed to paying any interim spousal support and is opposed to paying child support in the quantum that is being sought by Ms. Jung. He is also opposed to paying interim costs and disbursements. 3 The parties appeared before Quigley J. on July 23, 2015 to argue the terms of an adjournment. The adjournment had been requested by Mr. Johnson in order to permit questioning on issues related to Ms. Jung’s spousal and child support claims. On July 26, 2015 [2015 CarswellOnt 11448 (Ont. S.C.J.)], Quigley J. granted the adjournment, but also made an order that Mr. Johnson pay Ms. Jung $25,000 per month child support retroactive to October 2014 (the commencement date and not the quantum of support appears to have been agreed to by Mr. Johnson) and ongoing until superseded by further order of the court or on consent.

Background 4 Ms. Jung is 25 years of age and Mr. Johnson is 28 years of age. Ms. Jung is presently a student at Humber College while Mr. Johnson is a professional basketball player, having previously played for the Toronto Raptors and recently signed with the Boston Celtics. The parties do not dispute at this stage that Mr. Johnson’s income is $12 million USD per Jung v. Johnson S.M. Stevenson J. 55

year. While full details have not yet been provided, Mr. Johnson deposes that his contract is for one year with a team option for a second year. 5 Ms. Jung takes the position that the parties cohabited for a period of approximately 18 months. Mr. Johnson acknowledges that Ms. Jung was his girlfriend at one point, but he denies that the parties resided together. As indicated by Quigley J. in his endorsement, the nature of the relationship between the parties is central to the legal issues between them with respect to spousal support; however, what is not an issue is that the parties had a daughter together, Amelia, who is now two years of age.

Issues 6 The following are the issues for determination: i) What is the appropriate amount of interim child support that should be paid by Mr. Johnson to Ms. Jung and when should the child support payments commence? ii) Is Ms. Jung entitled to spousal support on an interim basis? If so, what is the appropriate amount of interim spousal support payable and when should the spousal support payments commence? iii) Should Mr. Johnson pay interim costs and disbursements to Ms. Jung and if so, in what amount?

Issue #1 What is the appropriate amount of interim child support that should be paid by Mr. Johnson to Ms. Jung and when should the child support payments commence? Ms. Jung’s Position 7 Counsel for Ms. Jung submits that Mr. Johnson’s ability to pay is not an issue and that Mr. Johnson’s current salary in Canadian dollars is approximately $15,713,280. Mr. Johnson is set to receive this salary commencing November 2015. Prior to his current contract with the Boston Celtics, it is acknowledged that Mr. Johnson was earning approximately $6 million USD with the Toronto Raptors along with additional monies earned from endorsements. 8 At Mr. Johnson’s current income, counsel for Ms. Jung submits that the presumptive amount under the Child Support Guidelines O. Reg. 391/97, as amended (the “Guidelines”) is $116,431 per month. Counsel submits that Ms. Jung is not seeking full table support but rather she is 56 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

seeking a much reduced monthly amount of child support in the amount of $50,000. 9 Ms. Jung is concerned that given the nature of Mr. Johnson’s employment, his income will not remain the same for the foreseeable future. Additionally, she is also concerned that he may suffer a career ending injury that would affect any future income. For these reasons, she contends that child support needs to be in a sufficient amount to account for these factors and to save for Amelia’s future. 10 Ms. Jung deposes that Mr. Johnson enjoys a lifestyle in stark contrast to the lifestyle she has with Amelia. She contends that Mr. Johnson has owned various luxury high-end vehicles during the course of their relationship and continues to do so. She deposes that he owns properties in Los Angeles, California and Las Vegas, Nevada. She also indicates that Mr. Johnson enjoys luxurious vacations frequently and buys his mother expensive gifts. 11 Prior to the order of Quigley J., Ms. Jung contends that she was strug- gling financially and was not able to pay for all of her expenses given she was not receiving appropriate support from Mr. Johnson. She is presently unemployed and enrolled full-time in college pursuing an Early Child- hood Education diploma. She hopes to pursue further studies in university and eventually pursue a career as a teacher. 12 She indicates that initially she was not receiving any funds to assist with the professional care of Amelia while she pursued her education. She was eventually able to retain a nanny in September 2014, but she did not require the services of a nanny while she was off from school during the summer months. She contends that she now requires the services of a nanny on an ongoing basis. Ms. Jung indicates that Amelia is enrolled in a Montessori private school program that commenced this fall. She acknowledges that Mr. Johnson paid for Amelia’s tuition. 13 Ms. Jung deposes that she would like to start saving money for Ame- lia and she would like to personally save money so that she can provide Amelia with a lifestyle that Amelia would otherwise enjoy with Mr. Johnson. She indicates that she would like to put approximately $40,000 per month away for this purpose which she has included in her child expense budget submitted for this motion. 14 Ms. Jung also deposes that she would like to purchase a home in the Greater Toronto Area. She indicates that she would like to purchase a home with a cost in the range of $1 million to $1.5 million which would be similar to the properties owned by Mr. Johnson. She would also like Jung v. Johnson S.M. Stevenson J. 57

to take Amelia on vacations similar to the vacations she enjoyed with Mr. Johnson while they were in a relationship. She deposes that another reason for her wanting to put funds away for savings is that she wants to provide Amelia with the highest quality education, sports, dance or other type of program that Amelia may be interested in in the future. 15 Counsel for Ms. Jung relies on the Supreme Court of Canada decision of Francis v. Baker, [1999] S.C.J. No. 52 (S.C.C.) at para. 52 wherein he contends that the Court emphasized that the sheer size of a child support award based on a payor’s income is not relevant to the inquiry a court should undertake in deciding upon a child support amount. He further relies on the decision of the Ontario Court of Appeal in R. v. R., [2002] O.J. No. 1095 (Ont. C.A.) wherein Laskin J.A. at para. 39 outlines that Francis v. Baker established general principles for determining how much high income earners should pay in child support which includes allowing for reasonable discretionary expenses: [39] Against that legislative regime, the Supreme Court’s decision in Francis v. Baker provides further guidance in determining how much high income parents should pay in child support. Francis v. Baker established the following general principles: • Trial judges have discretion either to increase or decrease the table amount if they consider that amount inappropriate and instead to order an amount that they consider appropriate. • The table amount, however, is presumed to be the appropriate amount. A parent seeking an order different from the table amount bears the onus of rebutting the presumption in s. 3 of the Guidelines and must do so by “clear and compelling evidence”. The sheer size of the table amount is not by itself an “articulable reason” for departing from it. • Although the considerations relevant to an appropriate child support order will differ from case to case, the courts must at least have regard to the objectives of the Divorce Act and the Guidelines, and to the factors expressly listed in s. 4(b)(ii) of the Guidelines. The legislative objectives are intended to ensure “that a divorce will affect the children as little as possible” and the factors in s. 4(b)(ii) further that intent by emphasizing “the centrality of the actual situation of the children”. • Child support should meet a child’s reasonable needs. For children of wealthy parents, reasonable needs include reasonable discretionary expenses. A paying parent who claims the table amount is inappropriate must, therefore, demonstrate that budgeted child expenses are so high that they “exceed the 58 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

generous ambit within which reasonable disagreement is possible”, in short that the budgeted expenses are unreasonable. Table amounts that so far exceed a child’s reasonable needs that they become a transfer of wealth between the parents or spousal support under the guise of child support will be inappropriate. 16 Counsel for Ms. Jung indicates that at para. 40, Laskin J.A. went on to state that “...where the payer’s ability to pay is not in question, a trial judge should focus on the considerations relevant to determining the amount of support required to meet the children’s reasonable needs.” 17 Counsel for Ms. Jung also relies upon the Court of Appeal decision of Simon v. Simon, [1999] O.J. No. 4492 (Ont. C.A.) in support of Ms. Jung’s position that the court has endorsed, as was done in Simon, a payee’s request to purchase a home for herself and the child. Counsel further submits that in Simon, MacPherson J.A. also indicated that Mr. Simon (a professional hockey player) supporting his child on the basis of less than 10% of his income did not seem unreasonable. In this case, Ms. Jung submits that she only seeks $50,000 per month based on a budget that includes reasonable expenses for Amelia, some discretionary spending, and savings for the future. She further submits that these expenses are entirely reasonable as the amount sought is only 3.81 % of Mr. John- son’s monthly income. 18 Counsel for Ms. Jung provided the court with a number of cases dealing with high income earners to support Ms. Jung’s position that the amount of 3.81% of Mr. Johnson’s monthly income is entirely reasonable. Counsel provided a chart outlining that in the case law provided by Ms. Jung, the range of child support payable is from 7.9% to 14% of a high income payor’s monthly income. 19 Despite his submission that Ms. Jung’s child expense budget is entirely reasonable, counsel for Ms. Jung submits that in Francis v. Baker at para. 49, the Court noted the “inherent imprecision” of child expense budgets and that the “unique economic situation of high income earners must be acknowledged. Child expenses which may well be reasonable for the wealthy may too quickly be deemed unreasonable by the courts.” 20 Counsel for Ms. Jung also argues that the short duration of Mr. John- son’s career must also be considered when the Court takes into consideration the need for discretionary spending and savings for Amelia. Ms. Jung submits that there is more of a need for her to start saving now for Jung v. Johnson S.M. Stevenson J. 59

Amelia’s future given the short window in which Mr. Johnson will be able to earn this significant income.

Mr. Johnson’s Position 21 In contrast, Mr. Johnson argues that the amount of child support sought is unreasonable and excessive. Counsel for Mr. Johnson submits that the parties never lived together and there is no pattern of spending with respect to Amelia as the parties’ relationship was over before Ame- lia was born. 22 While agreeing with counsel for Ms. Jung’s submission that budgets are imprecise, counsel for Mr. Johnson contends that even if everything in Ms. Jung’s budget is accepted at this stage (although Mr. Johnson argues many expenses are excessive and “absurd”) save for the $40,000 per month for savings, the total of the monthly child expense budget provided by Ms. Jung is $18,474. Some of that total he argues, includes monthly expenses of $5,000 for rent or a mortgage, $700 for car insurance, $3,000 for vacation, $2,000 for food and $2,000 for Amelia’s activities despite the fact that she is only two years old. Counsel for Mr. John- son submits that adding up the total monthly expenses of both Amelia and Ms. Jung as presented in the child expense budget results in expenses of just over $27,000. Again, this does not include the $40,000 per month in savings sought by Ms. Jung. 23 Counsel for Mr. Johnson submits that Mr. Johnson agrees to pay $28,000 per month pending a determination of the issue at trial. He contends that this amount would cover all of Ms. Jung and Amelia’s expenses until trial and that Amelia’s needs are met. At that point he submits that Mr. Johnson will know the status of his contract and the issues can be fully canvassed at trial. Counsel further submits that any adjustments can be made at trial.

Discussion 24 The relevant sections of the Guidelines for the purposes of this motion are sections 3 and 4 which state as follows: Presumptive rule 3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the 60 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

order relates and the income of the parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).... Incomes over $150,000 4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is, (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates, (ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and (iii) the amount, if any, determined under section 7. O. Reg. 391/97, s. 4. 25 There is a presumption in favour of Guidelines table support. As set out in s. 4(b), in the case of a parent or spouse earning an income in excess of $150,000, if the court considers the amount under the Guide- lines to be inappropriate, the court may deviate from the strict application of the Guidelines. The court may look at the condition, means, needs and other circumstances of the children entitled to support and the financial ability of each parent or spouse to contribute to the support of the children. 26 On this motion, Ms. Jung is not seeking the Guidelines amount of over $116,000 per month. She seeks $50,000 per month. As Ms. Jung is not requesting the table amount of support, for the purposes of this motion, Ms. Jung is conceding that the table amount would be inappropriate. 27 In terms of this motion, the most contentious issue appears to be the amount of $40,000 monthly sought by Ms. Jung for savings to afford her the opportunity to buy a home for Amelia in the $1 million to $1.5 million range and to save for Amelia’s future costs when Mr. Johnson may no longer be earning the high income that he is earning now. Jung v. Johnson S.M. Stevenson J. 61

28 While Mr. Johnson contends that many of Ms. Jung’s expenses for Amelia are excessive and he is not prepared to pay any spousal support because he takes the position that Ms. Jung is not entitled to spousal support, he is willing to cover Amelia’s expenses as set out by Ms. Jung (with the exception of the savings component) until trial. In fact, he is prepared to pay more than that amount of approximately $18,000 in expenses for Amelia as he is prepared to pay $28,000 which counsel for Mr. Johnson contends covers all of Amelia and Ms. Jung’s expenses set out in her budget except for the savings component of $40,000 per month. In contrast, counsel for Ms. Jung submits that Ms. Jung’s budget as set out in her sworn Financial Statement reflects a monthly budget of $83,000. 29 Given that Amelia was born after the relationship ended between Ms. Jung and Mr. Johnson, a pattern of spending involving Amelia was never established. The parties have differing views as to the standard of living to which Amelia is entitled. As this is an interim proceeding, issues such as savings for Amelia and how this issue is affected by the length of Mr. Johnson’s career, should be fully canvassed at trial. Contrary to the submission of counsel for Ms. Jung, this matter will not be prolonged as the parties have already completed questioning and are working on fulfilling undertakings. I estimate that a trial of this nature would take approximately 5 days. Trial dates of such duration in Toronto are easily available in early to mid-2016 when all of these issues will be addressed. 30 I agree that the amount of $28,000 per month is an appropriate amount of child support for Mr. Johnson to pay pending trial. While I acknowledge that Ms. Jung is seeking an amount of child support below the Guidelines and that budgets can be imprecise, at this stage of the proceedings the proposal by Mr. Johnson covers all of Amelia’s expenses outlined by Ms. Jung in her child expense budget. I also note that Mr. Johnson is paying for Amelia’s Montessori school fees. Leaving aside the issue of interim spousal support for a moment, the amount of $28,000 monthly proposed by Mr. Johnson on a without prejudice basis pending the resolution of the issues at trial, more than covers the child expense budget for Amelia prepared by Ms. Jung (without the savings component) and allows for an additional approximately $10,000 per month. How Ms. Jung chooses to use these funds for Amelia pending trial will be up to her, but undoubtedly this will be canvassed fully at trial by both parties when the issues of savings and discretionary spending are addressed in determining the appropriate child support quantum. I agree that it is appropriate for this motion, as was ordered by Quigley J., that 62 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

this amount commence as of October 2014 which was the date agreed to by Mr. Johnson before Quigley J. and the date of the notice of the claim. Additionally, as agreed to by counsel for Ms. Jung, any claim for child support owing prior to October 2014 will be addressed at trial.

Issue #2 Is Ms. Jung entitled to spousal support on an interim basis? If so, what is the appropriate amount of interim spousal support payable and when should the spousal support payments commence? Ms. Jung’s Position 31 Counsel for Ms. Jung contends that initially Mr. Johnson in his An- swer did not acknowledge that he was in anything more than a “casual sexual relationship” with Ms. Jung, however, after questioning Mr. John- son acknowledged that at one point Ms. Jung was his girlfriend. Counsel for Ms. Jung submits that the evidence is overwhelming that the parties cohabited and spousal support of $50,000 per month should be ordered payable by Mr. Johnson. 32 Ms. Jung’s evidence is that the parties lived in Mr. Johnson’s condominium commencing in the fall of 2012 to the spring of 2013 for approximately 18 months. She contends that she kept clothing and other items at Mr. Johnson’s condominium, the couple attended a wedding together (she submits as evidence an envelope addressed to the parties with the address specified as Mr. Johnson’s condominium), her sister’s graduation and they travelled together to visit with her father in St. Kitts. Ms. Jung also deposes that she attended Raptors’ home games and on occasion attended an away game. She submits that she had a Raptors Family Pass which Mr. Johnson gave to her. She also deposes that she attended Rap- tors charity events with other wives and partners of the players and appeared on a television program “Open Gym” involving the Raptors. Ms. Jung points to text messages between her and Mr. Johnson where they discussed the upcoming birth of their child and where Mr. Johnson states that he “wants to flourish with my woman.” She also submits that the parties discussed marriage. Ms. Jung deposes that the parties went on a number of vacations together and she went to meet Mr. Johnson’s father. She contends that she had a key to Mr. Johnson’s condominium and that the parties purchased a puppy together. She indicates that there are numerous photographs of her and Mr. Johnson attending functions together. 33 Counsel for Ms. Jung contends that when questioned, Mr. Johnson denied anything that would be harmful to his case. He insisted that Ms. Jung v. Johnson S.M. Stevenson J. 63

Jung only occasionally slept at his condominium, she did not have a key, and she did not keep any belongings at the condominium. Mr. Johnson contends that Ms. Jung was never present at his condominium alone and she was either in the presence of Mr. Johnson or his personal assistant Mr. Cornelius who resides with him. Counsel for Ms. Jung contends that the Court is obliged to draw an adverse inference given the failure of Mr. Johnson to have his personal assistant Mr. Cornelius swear an affidavit for this motion. He asks that the Court draw an adverse inference that either Mr. Cornelius’ evidence would not assist Mr. Johnson or would be contrary to Mr. Johnson’s case. He contends that the evidence would be contrary to Mr. Johnson’s case and that this is the inference the Court is entitled to draw. 34 Counsel for Ms. Jung further submits that Mr. Johnson denied that the parties discussed marriage and in fact would not even acknowledge when the text messages mentioned above were shown to him, that the messages were between he and Ms. Jung. He indicates that at Mr. John- son’s questioning, Mr. Johnson denied giving Ms. Jung the Raptors Fam- ily Pass. Counsel for Ms. Jung submits that it is hard to understand if not through Mr. Johnson, how would Ms. Jung have received the Family Pass. Counsel for Ms. Jung outlines that Mr. Johnson denied that he and Ms. Jung purchased a puppy together, he denied that she received mail at his residence, he denied that a photo shown to him of he and Ms. Jung in St. Kitts was in fact in St. Kitts although he did acknowledge that he met Ms. Jung’s father while in St. Kitts with her. 35 Counsel for Ms. Jung advised the Court that given Mr. Johnson’s denial of a number of questions put to him at his questioning, Ms. Jung swore a supplementary affidavit providing her evidence of the questions put to Mr. Johnson. She contends that she is the one being truthful and the parties resided together for 18 months. 36 Counsel for Ms. Jung submits that the court is not to conduct an in- depth analysis on an interim basis and Ms. Jung only has to show that she has a prima facie case. He further submits that the Spousal Support Advisory Guidelines (the “SSAGs) provide for a significant amount of monthly spousal support, in excess of $400,000 per month, which Ms. Jung acknowledges is exceptional. Ms. Jung is not seeking this amount as that it is an exceptional amount but she is seeking $50,000 per month for interim spousal support given her need as set out in her sworn Finan- cial Statement. 64 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

37 Ms. Jung relies on the decision of the Ontario Court of Appeal in M v. H, [1996] O.J. No. 4419 (Ont. C.A.) aff’d [1999] S.C.J. No. 23 (S.C.C.) at para. 70 with respect to the factors that a court should consider when determining whether the parties have cohabited in a relationship of some permanence. In reference to those factors, Ms. Jung contends that the parties lived in the same residence and slept in the same bed. Ms. Jung indicates that she kept her belongings in Mr. Johnson’s bedroom which is disputed by Mr. Johnson. However, counsel for Ms. Jung contends that Mr. Johnson acknowledged that a pink laundry bag in his bedroom was not his laundry bag. Ms. Jung states that she lived in Mr. Johnson’s home and she was not expected to contribute to the expenses of the home. Ms. Jung contends that the parties had sexual relations and Mr. Johnson agreed that Ms. Jung was his only girlfriend at the time. Ms. Jung deposes that the parties discussed marriage, they ate meals together and she cooked for Mr. Johnson. She further contends as indicated that the parties attended functions together, including events at Christmas, a wedding, and her sister’s graduation. She deposes that the parties vacationed together and visited family members. She outlines that Mr. Johnson paid for flights and accommodations when travelling with her. She deposes that he also purchased gifts for her.

Mr. Johnson’s Position 38 Counsel for Mr. Johnson submits that there is no evidence resulting from the questioning of the parties which changes the evidence that was before Quigley J. for the court to conclude that the parties were spouses. Counsel contends that the positions of the parties are diametrically opposed. He submits that Mr. Johnson’s evidence is that Ms. Jung lived with her mother, he did not provide Ms. Jung with a key to his condominium, she was never alone in his condominium, and she completed no domestic chores for him. He further contends that there was never a mingling of finances between the parties, Ms. Jung never kept her belongings at Mr. Johnson’s apartment and Ms. Jung never changed her address on her driver’s licence or any other important documentation. Counsel for Mr. Johnson submits that most importantly, even though Mr. Johnson admits that Ms. Jung was his girlfriend, the evidence is so conflicting with respect to the issue of whether the parties cohabited, it requires that the matter be decided at trial. 39 Counsel for Mr. Johnson disputes Ms. Jung’s position that an adverse inference must be drawn against Mr. Johnson for his failure to have Mr. Cornelius swear an affidavit. He contends that Mr. Johnson is not obli- Jung v. Johnson S.M. Stevenson J. 65

gated at this interim stage to provide an affidavit from Mr. Cornelius and as such, no adverse inference should be drawn.

Discussion 40 Pursuant to section 29 of the Family Law Act, R.S.O. 1990, C. F3, “spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. 41 Ms. Jung contends that the parties resided in a relationship for approximately 18 months. As such, she is proceeding on the basis that s. 29(a) does not apply. There are two elements to determine if a party is a spouse under s. 29(b). The parties must have cohabited and they must have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child. 42 The court need not conduct an in-depth analysis at this stage but considering the conflicting evidence before me, I cannot conclude that Ms. Jung has established a prima facie case for spousal support and I decline to order interim spousal support. There is no question that Ms. Jung and Mr. Johnson had a child together. However, the evidence on which Ms. Jung relies to establish that the parties cohabited and were in a relationship of some permanence is disputed by Mr. Johnson. Although the evidence supports that the parties were in a boyfriend-girlfriend relationship as admitted to by Mr. Johnson on his questioning, the record before me, with so much conflicting evidence, does not allow me to determine whether the parties cohabited at all let alone in a relationship of some permanence. 43 Much of the evidence on which Ms. Jung relies could also support Mr. Johnson’s position that the parties were in a girlfriend-boyfriend relationship but they never resided together. As an example, many couples in a boyfriend-girlfriend relationship attend weddings and family functions together, meet each other’s relatives, travel together and purchase gifts for one another which is some of the evidence relied upon by Ms. Jung. Most of the evidence of Ms. Jung is disputed by Mr. Johnson. The only issues it appears that the parties do agree on is that they were in a boyfriend-girlfriend relationship, they are the parents of Amelia, Amelia was born after the parties had broken up, and for a short period of time 66 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Amelia and Ms. Jung resided at Mr. Johnson’s condominium in his second bedroom after the parties had broken up due to mould issues in Ms. Jung’s mother’s home. 44 There are credibility issues that cannot be determined on a motion. Mr. Johnson’s failure to have Mr. Cornelius provide an affidavit supporting his position at this interim stage does not lead me to conclude that an adverse inference must be drawn against him. I note also that Ms. Jung did not provide any supporting affidavits from her mother or other family members to support her position. Mr. Johnson deposes that Ms. Jung resided with her mother during the period in question and never cohabited with him. No affidavit from Ms. Jung’s mother was provided in support of Ms. Jung’s position. Undoubtedly, both parties will require third-party evidence at trial in order to corroborate their evidence. At this stage the court only has highly conflicting affidavit material and conflicting answers at questioning from the parties. A proper assessment of credibility needs to be determined at trial.

Issue #3 Should Mr. Johnson pay interim costs and disbursements to Ms. Jung and if so, in what amount? 45 Ms. Jung seeks interim costs and disbursements in the amount of $75,000. It is acknowledged by Ms. Jung that Mr. Johnson previously advanced the sum of $15,000 to assist with her legal costs. Ms. Jung contends that one-half of that amount was returned by her counsel to her given she was not receiving appropriate support from Mr. Johnson. 46 Ms. Jung deposes in her affidavit sworn July 10, 2015 that she cannot afford her legal fees but wishes to have her current lawyers continue to represent her. She further deposes that at the time of the swearing of the affidavit, she owed her lawyers approximately $40,000. She indicates that she will require interim costs and disbursements for the next steps in the proceeding including questioning and a settlement conference. 47 Counsel for Mr. Johnson contends that Ms. Jung was questioned on September 24, 2015 and acknowledged that her outstanding bill with her lawyer had been paid. Counsel submits that there is no evidence before the Court of any amount of fees or disbursements that Ms. Jung does or will owe to her lawyers. He submits that counsel for Ms. Jung has attempted to put in evidence improperly through his factum wherein counsel for Ms. Jung states that Ms. Jung will owe another $20,000 after the conclusion of this motion. Counsel for Ms. Jung further indicates in his Jung v. Johnson S.M. Stevenson J. 67

factum that Ms. Jung has not yet decided whether she will be retaining a valuator or other experts for the purposes of determining Mr. Johnson’s true income based on his endorsements and other business interests. Counsel for Ms. Jung contends that an order for interim disbursements is necessary to level the playing field between the parties. 48 Counsel for Mr. Johnson submits that he questioned Ms. Jung on why she needed to receive back from her lawyers the sum of $7,500 from the $15,000 that was advanced to her by Mr. Johnson to assist with her legal fees. Counsel for Mr. Johnson contends that Mr. Johnson was paying Ms. Jung’s rent, car insurance and utilities plus providing her with an additional $5,000 per month at the time. Mr. Johnson had also previously purchased a vehicle for Ms. Jung to assist with Amelia. Counsel submits that Ms. Jung gave an undertaking to provide her bank statements which undertaking remains unanswered. 49 Pursuant to Rule 24(12) of the Family Law Rules, O. Reg. 114/99 the court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. 50 I am not prepared to grant the order as requested at this time. I agree with counsel for Mr. Johnson that there is no current evidence before the court as to an amount of fees and disbursements owing by Ms. Jung to her lawyers. The only reference to the current situation was put in Ms. Jung’s factum but there is no sworn evidence before the court from her or anyone else on her behalf to assist the court with the determination of this issue. This does not preclude Ms. Jung from revisiting this issue in the future, however, on this motion it would not be appropriate to grant the order requested without proper supporting evidence.

Order 51 This court orders as follows: i) commencing October 1, 2014, the respondent, Amir Johnson, shall pay interim child support to the applicant, Alana Jung, in the amount of $28,000 per month for the child Amelia Johnson, born September 18, 2013, pending trial and until further order of the court. This order is without prejudice to either party arguing for a different amount at trial and without prejudice to the applicant arguing at trial that the payments be made retroactive to Amelia’s birth; 68 REPORTS OF FAMILY LAW 71 R.F.L. (7th) ii) the applicant Alana Jung’s claim for interim spousal support is dismissed without prejudice to her proceeding with her claim for spousal support at trial including any retroactive claim; iii) the applicant Alana Jung’s claim for interim costs and disbursements is dismissed without prejudice to her advancing this claim in the future; iv) if not already scheduled, the parties shall schedule a Settlement Conference to be held no later than January 31, 2016 before me; and v) any party seeking costs shall serve and file written costs submissions, no longer than two double-spaced pages along with any Of- fers to Settle and a Bill of Costs, by November 16, 2015. Any reply submissions, no longer than two double-spaced pages, shall be served and filed by November 30, 2015. Order accordingly. Jung v. Johnson 69

[Indexed as: Jung v. Johnson] Alana Jung, Applicant and Amir Johnson, Respondent Ontario Superior Court of Justice Docket: FS-15-19905 2015 ONSC 8098 S.M. Stevenson J. Judgment: December 30, 2015 Family law –––– Costs — In family law proceedings generally — Factors considered — Financial circumstances –––– Mother was student, and father was professional basketball player — Parties had child in September 2013 — Mother brought motion for interim child and spousal support and interim costs and disbursements — Mother was awarded interim child support, but issue of spousal support was left for trial and evidence did not support award of interim costs — Parties made submissions on costs — Costs awarded to father — Both parties made offers to settle — While mother was successful in obtaining order for interim child support, it was less than that offered by father, and other relief requested by mother was left for trial — Father was more successful party; however, case law indicated that high income earning payor was in better position to fund litigation concerning child support — Mother had means to pay award of costs as she had received $364,000 from father, in addition to father paying for accommodation, vehicle, insurance, and $5,000 per month prior to motion — Costs award would not negatively affect child as she would be provided for despite costs award against mother — Mother was ordered to pay costs of $7,500. Cases considered by S.M. Stevenson J.: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634, 48 C.P.C. (5th) 56, 188 O.A.C. 201, 71 O.R. (3d) 291 (Ont. C.A.) — followed Cole v. Freiwald (2011), 2011 CarswellOnt 10517, 10 R.F.L. (7th) 231 (Ont. C.J.) — considered M. (C.A.) v. M. (D.) (2003), 2003 CarswellOnt 3606, 43 R.F.L. (5th) 149, 231 D.L.R. (4th) 479, [2003] O.J. No. 3707, 67 O.R. (3d) 181, 176 O.A.C. 201 (Ont. C.A.) — followed Scipione v. Del Sordo (2015), 2015 ONSC 5982, 2015 CarswellOnt 14971 (Ont. S.C.J.) — considered Sims-Howarth v. Bilcliffe (2000), 2000 CarswellOnt 299, 6 R.F.L. (5th) 430, [2000] O.J. No. 330 (Ont. S.C.J.) — followed 70 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Tauber v. Tauber (2000), 2000 CarswellOnt 2019, 48 O.R. (3d) 577, 6 R.F.L. (5th) 442, 187 D.L.R. (4th) 1, [2000] O.J. No. 2133, 133 O.A.C. 66 (Ont. C.A.) — followed Rules considered: Family Law Rules, O. Reg. 114/99 R. 18 — referred to R. 18(14) — considered R. 18(14) ¶ 5 — referred to R. 18(16) — considered R. 24 — referred to R. 24(1) — considered R. 24(5) — considered R. 24(11) — considered R. 24(11)(f) — considered

ADDITIONAL REASONS to judgment reported at Jung v. Johnson (2015), 71 R.F.L. (7th) 51, 2015 ONSC 6734, 2015 CarswellOnt 16598 (Ont. S.C.J.), concerning costs of motion for interim support and interim costs and disbursements.

Harold Niman, Richard Niman, for Applicant Grant Gold, for Respondent

S.M. Stevenson J.:

1 Both parties seek costs with respect to the long motion that was heard before me on October 13, 2015 [reported at 71 R.F.L. (7th) 51]. As the parties have been unable to resolve the issue of costs, both have filed written submissions along with reply submissions which I have now considered. The applicant seeks costs on what she submits is a less than par- tial indemnity basis in the amount of $20,000 inclusive of disbursements. The Respondent seeks costs in the amount of $52,205.39.

Success and Offers to Settle 2 The issue of costs in a family law proceeding is determined by Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”). Under Rule 24(1) there is a presumption that a successful party is entitled to costs. 3 As stated by Aston J. in Sims-Howarth v. Bilcliffe, 2000 CanLII 22584, (2000), 6 R.F.L. (5th) 430, [2000] O.J. No. 330 (Ont. S.C.J.) at para. 13: “Offers to settle not only become a yardstick by which to mea- Jung v. Johnson S.M. Stevenson J. 71

sure success, but also become a prime consideration in determining the quantification of costs.” 4 Rule 18(14) of the FLRs describes the costs consequences of failing to accept an Offer to Settle as follows: 18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3. The offer does not expire and is not withdrawn before the hearing starts. 4. The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18(14). 5 Both parties claim that they were successful and that they are entitled to costs. The applicant submits that she has been successful for two reasons. Firstly, the applicant submits that: “the case law is consistent that a party seeking proper child support in a high income case should have his or her costs payable for the child support issues in the proceeding.” She also submits that the respondent’s offers did not include any retroactive support payments or included minimal retroactive support payments. She contends that the Court ordered retroactive child support to October 2014 and as such, she was successful on the motion. 6 In contrast, the respondent acknowledges that the applicant was successful in obtaining a retroactive child support order, however, he contends that overall the applicant was unsuccessful. The respondent contends that he was predominantly successful on more of the issues and he is entitled to costs. 7 The applicant submits that since the Case Conference in March of 2015, she made numerous Offers to Settle. Counsel for the applicant has included with his submissions an appendix containing a chart outlining the numerous offers made by both parties in an effort to resolve the matter. Counsel for the applicant contends that nearly all of the applicant’s offers were less than what she received as a result of the motion and that many of the respondent’s offers were also less than what the applicant 72 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

received on the motion. Further, the applicant submits that almost none of the respondent’s offers regarding child support were made retroactive and if retroactivity was included, it was only for a few months. The applicant further contends that despite the respondent’s most recent offer made pursuant to the motion being in excess of the child support ordered by the Court, she contends that the offer of child support was not retroactive and was only received on the eve of the motion. The applicant further contends that neither party bettered their offer with respect to the motion. However, she requests that all of the offers be taken into account by this Court in determining costs. 8 The respondent included with his written costs submissions two Of- fers to Settle, one by the respondent and one by the applicant. In the respondent’s Offer to Settle dated October 8, 2015, he offered to pay interim child support in the amount of $36,000 per month commencing November 1, 2015 until the date of the trial, subject to a retroactive adjustment either upwards or downwards to November 1, 2015 to reflect the amount of child support awarded at trial. The offer also included a provision that the issue of spousal support be adjourned to the trial and that neither party pay costs of the motion. The offer was to remain open for acceptance until one minute after the commencement of the hearing of the motion returnable October 13, 2015. 9 Counsel for the respondent also included the Offer to Settle dated Oc- tober 9, 2015 of the applicant. The provisions of the applicant’s offer included that the respondent, on a without prejudice basis, pay interim child support in the amount of $40,000 per month retroactive to October 2014 until the date of trial (with credit given to the respondent for payments already made for child support in the amount of $325,000 resulting in the respondent owing the applicant $195,000 in retroactive support) and the issue of spousal support was to be adjourned to the trial on a without prejudice basis. The Offer to Settle was open for acceptance until one minute after the commencement of the motion. If the Offer to Settle was accepted before 4:30 p.m. on October 9, 2015, there was to be no order as to costs. If the Offer to Settle was accepted thereafter, the respondent was to pay the applicant’s costs of the motion on a substantial indemnity basis. 10 The applicant sought an order for interim child support in the amount of $50,000 per month retroactive to October 2014. Counsel for the applicant agreed at the hearing of the motion that despite the fact that the applicant was seeking child support retroactive to September 18, 2013, Jung v. Johnson S.M. Stevenson J. 73

the issue of retroactive child support from September 18, 2013 to Octo- ber 2014 would be addressed at trial. The applicant also sought interim spousal support in the amount of $50,000 per month retroactive to Octo- ber 2014 and interim costs and disbursements in the amount of $75,000. 11 After the hearing of the motion, an order was made that the respondent pay interim child support to the applicant in the amount of $28,000 per month pending trial and until further order of the Court. This was to commence as of October 1, 2014. The order was made without prejudice to either party arguing for a different amount at trial and without prejudice to the applicant arguing at trial that the payments be made retroactive to the child Amelia’s birth, being September 18, 2013. The applicant’s claim for interim spousal support was dismissed without prejudice to her proceeding with her claim for spousal support at trial including any retroactive claim. Further, the applicant’s claim for interim costs and disbursements was dismissed without prejudice to her advancing this claim in the future. 12 I note that there were numerous attempts made by both parties to resolve the issues in their entirety. Counsel for the applicant did not provide copies of the Offers to Settle made by the parties but as contained within his chart, it is apparent that numerous attempts were made by both sides. In many of these offers, the applicant is seeking to have the respondent purchase a home for her and Amelia or to purchase a home to be held in trust for Amelia along with child support payments. There are also fixed non- variable amounts set for child support. It is acknowledged that some of these offers do not include retroactive child support, however, these other provisions are contained within the offers as indicated with respect to the purchase of a home and the fixed amount of child support. Although these offers are relevant to the determination of the overall reasonableness of the parties, the more pertinent Offers to Settle pertaining to the motion before me are the October 8, 2015 and October 9, 2015 offers. It is also important to note that at the actual hearing of the motion, the position taken by the respondent that day was that he was prepared to pay $28,000 per month in child support and was also agreea- ble that any adjustments could be made at trial. 13 In his Offer to Settle dated October 8, 2015, the respondent offered to pay interim child support in the amount of $36,000 per month commencing November 1, 2015 subject to a retroactive adjustment either upwards or downwards to November 1, 2015 to reflect the amount of child support awarded at trial. As indicated, he also offered that the issue of 74 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

spousal support be adjourned to the trial and that neither party pay costs of this motion. The issue of interim costs and disbursements was not addressed in the Offer to Settle. The respondent’s offer for child support exceeded the amount of child support ordered. With respect to the issue of spousal support, this issue was to be adjourned to trial. The order provided that the claim for interim spousal support was dismissed without prejudice to the applicant proceeding with her claim for spousal support at trial including any retroactive claim. 14 In her Offer to Settle dated October 9, 2015, the applicant offered child support in the amount of $40,000 per month retroactive to October 2014 allowing the respondent credit for payments already made. The issue of spousal support was to be adjourned to trial on a without prejudice basis. Similarly, the applicant’s Offer does not include any provision with respect to interim costs and disbursements. 15 Taking into consideration the relief sought by the applicant on her motion, the relief sought by her on the day of the hearing of the motion, the offers made by the parties, and the order made, overall the respondent was more successful. It is acknowledged that the applicant was successful in obtaining a retroactive child support order, however, the child support ordered was in the amount sought to be ordered by the respondent at the hearing of the motion (i.e. $28,000), and the amount ordered was less than the respondent’s offer of $36,000 per month. Further, the applicant’s claim for spousal support was dismissed without prejudice to the applicant seeking this relief at trial including on a retroactive basis. The applicant sought $50,000 at the hearing of the motion and to have the issue addressed at trial in her Offer. The respondent offered to have the spousal support issue determined at trial as he did at the hearing of the motion. This is similar to what was ordered. The claim for interim costs and disbursements sought by the applicant was dismissed without prejudice to her advancing her claim in the future. The respondent had argued that there was no evidence before the Court to order this relief. This was accepted by the Court and the claim was dismissed as indicated. The respondent’s Offer did not address the issue of interim costs and disbursements. As the respondent has been more successful, there is a presumption that the respondent is entitled to some costs. 16 I find that the full recovery provisions under Rule 18(14) of the FLRs are not applicable as neither party’s offer fulfilled the criteria set out in Rule 18(14)5. I do not find that overall either party obtained an order that Jung v. Johnson S.M. Stevenson J. 75

was as favourable as or more favourable than the offers on all of the issues. 17 Despite this, both parties’ offers are still a relevant consideration under Rule 18(16) which states: “When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.” 18 To determine costs, I must also consider the factors set out in s. 24(11) of the FLRs in setting the amount of costs as follows:

The Importance, Complexity or Difficulty of the Issues 19 The issues were not overly complex or difficult. However, it is acknowledged that given the respondent earns a significant income, this did add some complexity to the motion. The issues were important to both parties.

The Reasonableness or Unreasonableness of Each Party’s Behaviour in the Case 20 Pursuant to Rule 24(5) of the FLRs, when determining whether a party has behaved reasonably or unreasonably, the Court must consider the parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle, the reasonableness of any offer the party made and any offer the party withdrew or failed to accept. The respondent made a reasonable offer with respect to the motion. The amount of monthly child support offered was $8,000 more per month than what was ordered and was subject to adjustment at trial back to November 1, 2015. I agree that the applicant could have had the benefit of increased payments prior to trial had she accepted the offer of $36,000 per month. However, it is acknowledged that this Offer did not commence the child support payments as of October 2014 as ordered. Overall I did not find either party’s behaviour unreasonable. Both attempted to resolve the issues through many Offers to Settle throughout the proceeding.

The Lawyer’s Rates 21 I consider the hourly rate of counsel for the applicant of $820 to be reasonable for senior counsel in Toronto with his experience. I also consider the respondent’s counsel rate of $650 per hour to be reasonable for senior counsel in Toronto with his experience. Both senior counsel had 76 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

counsel with less experience complete some work on the file. Their respective rates are also reasonable.

The Time Properly Spent on the Case 22 I find the total time spent on the file, as submitted by counsel for the applicant, of 102.1 hours including questioning to be excessive for this motion as do I find the total time of 81.6 hours as submitted by the respondent. Proportionality must be considered. There is also duplication in work by counsel for the applicant and time charged for both counsel to attend on the motion. It is difficult to determine whether there is any duplication of work performed by each counsel for the respondent as no itemized details are provided regarding the work performed by each individual lawyer, only the total time by each lawyer. I do note that only Mr. Gold appeared as counsel for the respondent at the hearing of the motion before me. His fee for that attendance is reasonable.

Expenses Properly Paid or Payable 23 I have reviewed the expenses claimed by the applicant. They total $892.65 and are not unreasonable. The respondent’s expenses claimed total $2,257.09 which is also not unreasonable as $1,544.55 includes the costs of transcripts and special examiner fee.

Any Other Relevant Matter 24 Rule 24(11)(f) of the FLRs states that a person setting the amount of costs shall consider any other relevant matter. As noted by Justice Rosen- berg in M. (C.A.) v. M. (D.) (2003), 176 O.A.C. 201, 67 O.R. (3d) 181, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149 (Ont. C.A.); at para. 42, in setting the amount of costs, the financial positions of the parties and the impact on the best interests of the children may be taken into consideration. 25 Counsel for the applicant relies on the Ontario Court of Appeal decision of Tauber v. Tauber, [2000] O.J. No. 2133 (Ont. C.A.) in support of the applicant’s position that in cases involving high income earners as stated by Rosenberg J.A., at para. 51: “absent unusual conduct, the payer spouse in such cases being in the best position to fund the litigation should be required to pay the costs attributable to the child support issues.” Counsel for the applicant sets out in his written submissions that in Tauber at paras. 55- 57, Rosenberg J.A. further indicated that custodial parents should not bear the costs of litigation for the benefit of the Jung v. Johnson S.M. Stevenson J. 77

child where the non-custodial parent is challenging the table amount and if the non-custodial parent does want to challenge the presumptive table amount, he or she should ordinarily be required to pay for that exercise. 26 The applicant asserts that the applicant was not seeking the table amount on the motion and in fact, she did not even seek half of the table amount. She contends that the motion was for the benefit of Amelia, and that the applicant negotiated for months but was forced to bring the motion. She further submits that it was in the respondent’s interest to litigate and he should be required to pay costs. She argues that the motion could have been resolved had the respondent agreed to make any of his offers retroactive. 27 In contrast, the respondent submits that the respondent was reasonable in litigating the interim support issues. He contends that the applicant was seeking a significant amount of child and spousal support and interim disbursements of $75,000. Counsel for the respondent submits that Tauber was related to a decision at trial, not a motion. He contends that in any event, the applicant does have the means to bear her own costs and that of the motion as she has received to date $364,000 from the respondent. The respondent contends that in addition he was voluntarily paying for all of the applicant’s costs of accommodation including her rent and all utilities, he had purchased a vehicle for her and was paying the insurance on the vehicle as well as providing the applicant with $5,000 per month prior to the motion. 28 Counsel for the respondent further contends that a costs award will not negatively affect Amelia’s best interests as she will be well provided for despite any costs order against the applicant. The respondent relies upon the decisions of Cole v. Freiwald, 2011 CarswellOnt 10517 (Ont. C.J.) and Scipione v. Del Sordo, 2015 ONSC 5982 (Ont. S.C.J.) in support of his position that: “While a party’s limited financial circumstances is a factor for the court to consider, it should not be used as a shield against any liability for costs.”

Conclusion 29 As indicated, overall the respondent was more successful. The respondent earns a significant income (approximately $15,700,000 CAD) while the applicant is a full-time student. I agree with the submissions of the applicant that following Tauber, the respondent should be required to pay the costs attributable to the child support issue. He is in a significantly better financial position to challenge the amount of child support 78 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

which support is for the benefit of Amelia. However, the applicant’s submissions fail to take into account her lack of success on the issues of spousal support and interim costs and disbursements. The respondent was successful on these two issues. I have taken all of these factors into consideration in exercising my discretion with respect to the order of costs. 30 I must also take into consideration the principle of reasonableness in determining costs. As stated in Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 with respect to costs: “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. 31 Taking into consideration the reasonableness of the amount sought by the respondent and proportionality, the submissions of the parties, Rule 24(1), the factors outlined above that I have considered under Rule 24(11) and Rule 18 including the Offers served by the parties, the applicant shall pay to the respondent costs in the amount of $7,500. The timing of the payment of this costs order shall be determined by the trial Judge. Order accordingly. E. (B.P.) v. E. (A.) 79

[Indexed as: E. (B.P.) v. E. (A.)] B.P.E., Claimant and A.E., Respondent British Columbia Supreme Court Docket: Vancouver E123309 2015 BCSC 2416 L.D. Russell J. Heard: November 29, 2015 Judgment: December 21, 2015 Family law –––– Support — Child support under federal and provincial guidelines — Variation or termination of award — Miscellaneous –––– Par- ties married in 2011, had three children, separated in April 2011, signed separation agreement in August 2012, and finalized divorce in February 2013 — Agreement provided in part for joint custody and that children would spend approximately equal time with each parent — Agreement provided for basic child support of $7,900 monthly payable to mother up to and including December 2014, with provision for reviewing child support after April 2015 and in April each year thereafter — Parties did not agree on whether it was appropriate to average father’s annual income and when child support was reviewed in April 2015, parties were at liberty to fully argue issue — Since separation, both parties remarried — Mother applied for relief including increase in amount of child support payable — Application for increased child support dismissed — Father had not put forward argument in relation to s. 4 of Federal Child Support Guide- lines and it would not be appropriate to require him to rebut presumptions under s. 4 — On considerations of factors set out in s. 9(a) to (c) of Guidelines, no increase in child support was warranted — Amount of $7,900 agreed to by parties sufficiently covered expenses that could be reasonably attributed to children, especially in light of fact that highest expense relating to children did not credit father’s 50 per cent contribution to special expenses listed — Examination of budgets and annual expenditures of parties supported father’s position, because mother was able to meet children’s reasonable needs with support amount currently paid — Mother admitted that she did not include rental income from basement suite in financial statement, and this income was relevant to consider as extra income available to her — Some principles for consideration under s. 4 of Guidelines were helpful to complete s. 9(c) analysis, although s. 9 analysis was distinct from s. 4 analysis — Children were well cared for in both homes — Al- though there was some difference in household incomes, children enjoyed comfortable homes, vacations, outings, and high standards of living at each of their parents’ homes — While father may be considering renovations in future, there 80 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

was evidence that mother herself recently completed home renovations — Any amount over $7,900 monthly being currently paid would effectively be wealth transfer between two parties, or additional spousal support — Goal of support payments was for maintenance of children and not for household equalization and thus departure from set-off amount was justified. Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Child care expenses –––– Parties married in 2011, had three children, separated in April 2011, signed separation agreement in August 2012, and finalized divorce in February 2013 — Agreement provided in part for joint custody and that children would spend approximately equal time with each parent — Agreement provided for basic child support of $7,900 monthly payable to mother up to and including December 2014, with provision for reviewing child support after April 2015 and in April each year thereafter — Parties had nanny who came to work for mother in Sep- tember 2012 — Nanny would bring children home from school and remain with them until mother returned home around 6:30 pm — When mother began new position in late 2013, nanny would attend home at 7:00 am and then after work, mother and nanny each would take children to different activities — Nanny earned $800 every month to look after children and this amount increased to $1,000 per month in 2014 and to $1,200 per month in 2015 — Mother applied for relief including that father pay sum of $12,000 as 50 per cent of childcare expenses from 2012 to 2014, inclusive, and that he pay $8,284.80 for his propor- tionate share of childcare expenses for 2015 — On basis of evidence, not all of nanny’s time could be attributed to childcare during working hours — Some housework done by nanny was for benefit of household and was not solely attributable to children — Mother was to provide father with particulars and breakdown of her monthly costs incurred as result of nanny’s services — Break- down should highlight childcare services she provided for children as opposed to services that might be attributable to daughter of mother’s new partner or to mother’s household generally — Once particulars were provided, father was to pay to mother 50 per cent of amount attributable to childcare for children, for his share of childcare costs. Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Extraordinary expenses — General principles –––– Parties married in 2011, had three children, separated in April 2011, signed separation agreement in August 2012, and finalized divorce in February 2013 — Agreement provided in part for joint custody and that children would spend approximately equal time with each parent — Agreement provided for basic child support of $7,900 monthly payable to mother up to and including December 2014, with provision for reviewing child support after April 2015 and in April each year thereafter — Agreement further provided that father was to pay 50 per cent of special and extraordinary ex- E. (B.P.) v. E. (A.) 81 penses for children — Mother applied for relief including that father pay to mother 84 per cent of special and extraordinary expenses of children — Father was to pay 84 per cent of special and extraordinary expenses from September 1, 2015 onward — Parties submitted calculations showing that split based on apportionment of parties’ incomes was 83.6 percent and 16.4 per cent — Since there appeared to be agreement on figure, mother’s request was granted. Cases considered by L.D. Russell J.: B. (J.L.) v. O. (M.D.) (2012), 2012 BCSC 1107, 2012 CarswellBC 2212, [2012] B.C.J. No. 1561 (B.C. Master) — followed C. (R.A.) v. C. (V.L.) (2009), 2009 BCSC 1417, 2009 CarswellBC 2760 (B.C. S.C.) — referred to Contino v. Leonelli-Contino (2005), 2005 CarswellOnt 6281, 2005 CarswellOnt 6282, 2005 SCC 63, [2005] S.C.J. No. 65, 19 R.F.L. (6th) 272, 259 D.L.R. (4th) 388, 341 N.R. 1, 204 O.A.C. 311, [2005] 3 S.C.R. 217, 80 O.R. (3d) 480 (note) (S.C.C.) — followed Francis v. Baker (1999), [1999] S.C.J. No. 52, 1999 CarswellOnt 2734, 1999 CarswellOnt 2948, 44 O.R. (3d) 736 (headnote only), 177 D.L.R. (4th) 1, 246 N.R. 45, 50 R.F.L. (4th) 228, 125 O.A.C. 201, [1999] 3 S.C.R. 250 (S.C.C.) — followed Franke v. Franke (2008), 2008 BCSC 1145, 2008 CarswellBC 1769, 56 R.F.L. (6th) 276, [2008] B.C.J. No. 1601 (B.C. S.C.) — referred to H. (M.D.) v. H. (M.N.) (2013), 2013 BCSC 248, 2013 CarswellBC 392, [2013] B.C.J. No. 275 (B.C. S.C.) — referred to L. (C.L.) v. J. (S.W.) (2013), 2013 BCSC 917, 2013 CarswellBC 1539 (B.C. S.C.) — considered M. (S.R.) v. M. (N.G.T.) (2014), 2014 BCSC 442, 2014 CarswellBC 697, [2014] B.C.J. No. 466 (B.C. S.C.) — considered Madruga v. Madruga (2015), 2015 BCSC 1605, 2015 CarswellBC 2558 (B.C. S.C.) — referred to Ortynski v. Ortynski (2014), 2014 BCSC 73, 2014 CarswellBC 104 (B.C. S.C.) — followed R. (L.M.) v. R. (J.F.) (2010), 2010 BCSC 363, 2010 CarswellBC 708 (B.C. S.C.) — referred to Forms considered: Supreme Court Family Rules, B.C. Reg. 169/2009 App. A, Form F8 — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to s. 4 — considered 82 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

s. 7 — considered s. 8 — considered s. 9 — considered s. 9(a) — considered s. 9(a)-9(c) — referred to s. 9(b) — considered s. 9(c) — considered

APPLICATION by mother for relief including variation of child support payable by father, increase in amount payable by father in respect of extraordinary expenses, and payment by father of portion of childcare expenses.

S.L. Booth, for Claimant M.R. Ellis, Q.C., for Respondent

L.D. Russell J.: Introduction 1 In this family matter, this application is brought by the respondent, seeking a variety of orders against the claimant. During the course of the application proceedings the parties consented to the following: a) that the claimant pay to the respondent $574.50 for 50% of the extended health premiums paid by the respondent for the benefit of the children of the marriage, for the period from October 31, 2013 to December 31, 2014, inclusive; and b) that the claimant pay to the respondent $716.71 for 86.3% of the extended health premiums paid by the respondent for the benefit of the children of the marriage, for the period from January 1, 2015 to October 31, 2015, inclusive. 2 The remaining relief sought is as follows: a) that the claimant pay to the respondent $11,440 in monthly child support for the children of the marriage, commencing January 1, 2015; b) that the claimant pay to the respondent the sum of $12,000 as 50% of the childcare expenses for the years 2012 to 2014, inclusive; c) that the claimant pay to the respondent $8,284.80 for his propor- tionate share of childcare expenses for 2015; d) that commencing September 1, 2015, the claimant pay to the respondent 84% of the special and extraordinary expenses of the children of the marriage; E. (B.P.) v. E. (A.) L.D. Russell J. 83

e) that the claimant deliver to the respondent his T-1 tax return and attached documents no later than April 30 each year that any child remains a child of the marriage; and f) costs.

Background 3 The parties were married on August 4, 2001 in Tofino, BC. There are three children of the marriage: M.E., born July 22, 2003; N.E., born March 20, 2005; and C.E., born September 29, 2006 (collectively the “Children”). 4 The claimant is employed as an investment advisor and the respondent is employed as an executive assistant. She has had this position since the summer of 2013; prior to this she had been in an administrative role. 5 The parties separated in April 2011 and their divorce was finalized as of February 23, 2013. 6 Upon separation, the parties entered into a Separation Agreement, dated August 27, 2012 (the “Agreement”), to resolve the issues between them, including guardianship, custody and access, child and spousal support, and division of family property. Specifically, the Agreement provided that the parties would have joint custody and that the Children would spend approximately equal time with each parent. 7 The Agreement also provided for basic child support of $7,900 per month up to and including December 2014, with a provision for reviewing child support after April 20, 2015 and in April each year thereafter, unless otherwise agreed. The relevant provision of the Agreement dealing with child support states: For the purpose of this Agreement, [B.] and [A.] have agreed to an amount of child support of $7,900 per month. This amount shall be payable to [A.] by [B.] until December, 2014 as provided for in this Agreement. [B.] and [A.] did not agree on whether it was appropriate to average [B.]’s income for purposes of calculating child support or whether child support should be based on [B.]’s annual income. When the child support is reviewed in April, 2015, [B.] and [A.] are each at liberty to fully argue this issue, and the fact that they agreed to child support in the amount of $7,900 per month for this period of time shall not be used against either party. 8 The Agreement further provides that each of the parties will pay 50% of the special and extraordinary expenses for the Children, stipulating 84 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

that neither child support payments, nor those for special and extraordinary expenses were eligible for variation until after January 1, 2015. 9 Pursuant to the Agreement, the claimant also paid to the respondent a sum of $390,000 as lump sum spousal support, to reflect spousal support payments for a 10-year-period. 10 Since separation both parties have remarried. 11 The respondent and her new husband, T.B., purchased a home in July 2013 and moved in together in August. The home is roughly 3,500 square feet and the home was purchased for $1,655,000. The Children live with the respondent and Mr. B. Wednesdays and Thursdays and every other Friday, Saturday and Sunday, as well as for half of the holidays. Mr. B. also has a daughter from his previous marriage and she lives with them half the time, the same days as the Children. Mr. B. is employed full-time. 12 The claimant remarried in March of 2013 to H.E. At the time, she was living and working out of the country, and now she is currently tran- sitioning in her career. She became a permanent resident of Canada in January 2014. She has had no income since moving to Canada. She has no children from any prior relationships. The two currently rent the top two floors of a four bedroom home; their living area totals approximately 4,000 square feet. The home is 30 years old. In October 2015, the claimant purchased a new property for $1.793 million. 13 R.C. (whose married name is now R.W.) worked as a nanny for the parties before they separated. Initially, upon separation, she travelled back and forth between the two homes, but ultimately resigned in 2012. Later, in September of that same year, Ms. C. returned to work for the respondent. Since she is a teacher’s aide at the Children’s school, on the days she worked, she would bring the Children home from school and stay with them until the respondent returned home from work, and a workout, typically around 6:30 p.m. 14 When the respondent started her new position as executive assistant, Ms. C. began attending the home at 7:00 a.m., so the respondent could work out before work; after work, the respondent and Ms. C. each took the Children to their different activities. Ms. C. was also responsible for some cleaning of the home, and some laundry. 15 Ms. C. earned $800 cash every month to look after the Children. This amount increased to $1,000 per month in 2014, and to $1,200 per month in 2015. The respondent seeks reimbursement for 50% of the costs of E. (B.P.) v. E. (A.) L.D. Russell J. 85

Ms. C. because she submits they are childcare costs which the parties have agreed to share. 16 The claimant acknowledges the agreement to share childcare costs, and says he did know that Ms. C. was working for the respondent; however, he asserts he was never presented with a bill for her services until July 2015. In addition, he says he has not been provided with a breakdown as to what portion of her services was for the Children, what portion is related to caring for the respondent’s household and what portion of her services can be attributed to Mr. B.’s daughter. 17 The respondent arranges all of the Children’s extra-curricular activities and the claimant reimburses her for his 50% share of the expenses. Both parties assert that they have been responsible for the Children’s medical and dental appointments. 18 It is the respondent’s position, that there is a significant difference in the standard of living between the parties’ homes. She asserts that the Children travel more with their father on holidays; the Children eat out more frequently with the claimant; they ski more frequently with the claimant; they each have their own bedroom, with an ensuite bathroom, at the home the claimant is renting; the claimant is intending to build a new home; and the Children have been asked for their room preferences in this new home. 19 The respondent asserts that if she had more child support she would be able to do more activities away from the home with the Children, including going to restaurants, going skiing, enjoying weekends away, purchasing more new clothes for them, attending sporting events and other similar activities. 20 The claimant asserts that the parties came to the terms of the Agree- ment based in part on the fact that they shared care of the Children approximately equally and because the monthly support amount set out in the Agreement well exceeded the level of expenses that they had budgeted for the Children during their marriage. 21 The claimant also asserts that at the time of separation, he used the majority of his share of the equity of the former family residence to pay lump sum spousal support to the respondent. He asserts that due to that payment, he now rents his home because he has yet to replenish the equity used for that payment. 22 The claimant admits that he recently purchased the new property, but he says the home is approximately 61 years old, and was financed en- 86 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

tirely with debt. He used $20,000 from his chequing account, borrowed $80,000 and $200,000 from his mother and sister, respectively; borrowed $60,000 from a friend; has a loan for $211,647.94 from his mortgage broker; and has a $1,259,000 mortgage. 23 The claimant submitted the assessment roll for the respondent’s home which indicates that she and her husband purchased it for $1,655,000 in July 2013. He submits that the respondent contributed to the purchase of this home with money from the lump sum spousal support payment. He asserts that values in the area have gone up since that time. In addition, he asserts that she has done renovations to the home, which will also have increased its value. 24 The claimant points out that the Children were given some preferences with regard to their rooms during the respondent’s renovations. He also asserts that there were/are renters in the basement of the respondent’s home, and that she has not reported the income from this rental. The respondent admitted that the suite has been rented for the last 18 months at a rate between $1,000 and $1,500 paid in cash, per month. She has not provided an exact figure for the rental income she has received. 25 The claimant also says that he has requested the income information for Mr. B., but that he has not yet received it. However, based on the respondent’s 2014 T1 General Income Tax Return, Mr. B.’s net income for 2014 was $379,656.50. 26 The claimant submits that he questions whether the respondent’s standard of living is below his own. He says that while he does travel with the Children, the trips are not extravagant and he asserts that the respondent takes the Children on multiple vacations as well. He also submits that the respondent and her husband have traveled first class on vacations without the Children. He says he does not intend to build a new home, but does plan to renovate the one he purchased if he is able to consum- mate a significant business deal, which he asserts will benefit both him and the respondent. 27 Overall, the claimant agrees that there should not be a big disparity in the standard of living between the two homes; however, he asserts that he does not need to pay the full table amount of child support to achieve this; it is his view that a larger support payment is not necessitated by the best interests of the Children. E. (B.P.) v. E. (A.) L.D. Russell J. 87

Analysis Child Support 28 Based on the Agreement, the claimant currently pays $7,900 per month to the respondent for child support. 29 The respondent seeks to vary this amount, and submits that the court should apply the set-off amount of the parties’ Guideline support figures. She submits that there is a shortfall of $130,000 between her current income and the expenses she incurs on behalf of herself and the children. 30 Using the claimant’s T-4 income of $790,514 and allowing a deduction for his employment expenses of $15,365, the Guideline support amount for the claimant is $12,605. Using the respondent’s employment income of $58,593, her Guideline support amount is $1,165. The set-off figure that the respondent seeks to receive based on these calculations, is $11,440 per month. 31 The respondent also points to s. 4 of the Guidelines which applies where the income of a spouse is over $150,000. Section 4 follows: 4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. 32 The claimant and the respondent are in agreement as to the incomes to use in calculating Guideline support amounts, however, the claimant argues that the court has discretion under s. 9 of the Guidelines to vary the table amounts in shared custody situations. He submits that s. 9 is its own regime, and therefore there is no need to consider s. 4. In the alternative, he submits that he has met the burden under s. 4 of displacing the presumption in favour of the Guidelines amount, such that he should not 88 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

be obligated for the higher figure sought by the respondent. He submits that the figure reached in the Agreement represents an amount that fairly considers, and exceeds the reasonable expenses and needs of the Children. 33 Section 9 reads as follows: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. 34 The respondent submits that as per the discussion of the court in L. (C.L.) v. J. (S.W.), 2013 BCSC 917 (B.C. S.C.) at paras. 22 to 29, there is a high burden on a payor parent to sustain a conclusion that the Guide- lines amount is inappropriate. 35 I agree with the respondent that this is the case for relief under s. 4 of the Guidelines, however, the claimant has urged that s. 9 is the sole provision for consideration in this case and he has not sought relief under s. 4 in his submissions, except in the alternative as a response to the respondent’s submissions. 36 In many cases where ss. 4 and 9 have both been relevant, the courts begin by recognizing that both provisions are merely examples of discretionary exemptions to the table amounts payable under the Guidelines: R. (L.M.) v. R. (J.F.), 2010 BCSC 363 (B.C. S.C.) at para. 73; Madruga v. Madruga, 2015 BCSC 1605 (B.C. S.C.) at para. 47; and C. (R.A.) v. C. (V.L.), 2009 BCSC 1417 (B.C. S.C.) at paras. 24 and 30. 37 As a starting point to this issue, the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) made the following comments about s. 9 at para. 3: These shared custodial arrangements required the application of an entirely different formula, one that is not designed with the same guiding principles. Guidelines amounts applicable to the former non- custodial parent or to the highest income earner in the case of a first application cannot therefore be considered to be presumptively applicable. Shared custody arrangements are not a simple variation of the general regime; they constitute by themselves a complete system. E. (B.P.) v. E. (A.) L.D. Russell J. 89

38 While the respondent correctly argued that s. 4 places a high burden on the payor parent to justify deviating from the presumption of the Guidelines amount, s. 9 requires its own set of considerations separate and apart from the factors normally considered when determining child support under the Guidelines, and independent of any presumptions. 39 The claimant has not put forward an argument in relation to s. 4, and I find it would not be appropriate to require him to rebut the presumptions in place under s. 4. Section 9 lists the mandatory factors to be considered for determination of child support in the shared custody situation this family has in place, and requires the court to consider a different regime. I must weigh the circumstances fully in relation to the factors laid out in s. 9(a) to (c). 40 In R. (L.M.) at para. 73, the court, applying Contino, held that the wording of s. 9 was “imperative”, such that in cases of shared custody there is no presumption that Guideline amounts are payable. Specifically, the court referred to para. 24 of Contino where the Court said: The court “must” determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. There is no discretion as to when the section is to be applied: discretion exists only in relation to the quantification of child support (J.D. Payne and M.A. Payne, Child Support Guidelines in Canada 2004 (2004), at p. 254). 41 In the case at bar the parties are in agreement that s. 9 applies due to the fact that custody is shared. Since there is no presumption under s. 9 I find there is no higher burden of proof on one party over the other. I must exercise my discretion based on the totality of the evidence before me and by weighing the s. 9 factors. 42 In completing this analysis, the Court in Contino emphasized at para. 39 that courts should not use a formulaic approach to the application of s. 9. The approach should be flexible and fair, acknowledging the overall situation of the parents and the needs of the children, such that the weight of each factor will vary with the facts of each case.

Section 9(a): the amounts set out in the applicable tables 43 According to Contino at para. 40, the first factor requires the court to consider the financial situation of both parents, as opposed to the sole income of the spouse against whom the order is sought. The most often applied approach to s. 9(a) is to use the simple set-off approach of s. 8 of 90 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

the Guidelines: Contino at para. 49; R. (L.M.) at para. 76; Madruga at para. 52. 44 The respondent has provided the set-off figure as the full amount that she is seeking from the claimant; this figure is $11,440 (as per the discussion above). I find this is the appropriate starting point for the s. 9 analysis. As the cases state, there is no presumption in favour of this amount; I must go on to consider s. 9(b) and (c) to determine if I should depart from this amount, and ultimately maintain payments at $7,900 per month as the claimant submits.

Section 9(b): the increased costs of shared custody arrangements 45 According to Contino, s. 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent. This is because orders under s. 9 are not often sought to reflect a change in custody arrangements, and also because table amounts do not assume that the payor parent pays for housing, food, or any other expense for the child. In Con- tino, at para. 52, the Court held that: The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see Formula for the Table of Amounts Contained in the Federal Child Support Guide- lines: A Technical Report, at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody [citations omitted]. Consequently, all of the payor parent’s costs should be considered under s. 9(b) ...it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. 46 In applying these principles the Court in Contino considered whether the evidence showed a decrease in the mother’s costs as a result of the shared custody arrangement, and similarly, whether there had been an increase to the father’s expenses. Since there is no change in the custody arrangement between these parties I must look instead to the relative expenses incurred by the parties. 47 The respondent has submitted her support payments should be increased from the amount stipulated in the Agreement because there is a $130,000 annual shortfall between her income and the expenses she incurred on her and the Children’s behalf. E. (B.P.) v. E. (A.) L.D. Russell J. 91

48 However, the claimant submits that when the $7,900 was agreed upon (although without prejudice) at the time the Agreement was entered into, the full needs and reasonable expenses of the Children were taken into consideration. He also said that because this amount was more than enough to cover their costs, they agreed that the respondent would be primarily responsible for buying the Children’s clothing. 49 He submits that the needs of the Children do not require an increase in support over and above what was agreed to in the Agreement. He also submits that in calculating the shortfall between her income and expenses, the respondent failed to factor in any income in respect of spousal support that would be coming to her on a monthly basis, but for the lump sum award, and that the expenses she listed do not reflect his 50% contribution toward special expenses. 50 In looking at the figures submitted by the parties, it appears that the respondent’s expenses listed do not reflect the 50% contributed by the claimant for special and extraordinary expenses. 51 Aside from this, when reviewing the expense figures presented by the parties, I find that the $7,900 sufficiently covers the expenses that can be reasonably attributable to the Children, especially in light of the fact that the highest expense, which relates to the Children, does not credit the claimant’s 50% contribution to the special expenses listed. For example, the respondent listed as part of the $4,126.30 claimed for monthly expenses related to the Children, $829.84 for activities and lessons, $550 for school fees and supplies, and $1,200 for childcare (including day camps), to name a few, all of which are considered to be special and extraordinary expenses as per the Agreement. 52 In short, the respondent pays only 50% of these and similar amounts. 53 To summarize the passage from Contino above, the analysis it prescribes means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children. I find that this factor supports the position of the claimant because the respondent is able to meet the reasonable needs of the Children with the support amount currently paid at $7,900. That this is the case becomes even clearer if a figure is assigned allocating monthly spousal support to reflect the lump sum amount paid to the respondent. 92 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Section 9(c): the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought 54 In Contino, at para. 68, the Court said the following about the application of s. 9(c): It will be important to keep in mind the objectives of the Guidelines mentioned earlier, requiring a fair standard of support for the child and fair contributions from both parents. The court will be especially concerned here with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. 55 At para. 69, the Court went on to say that some factors to consider in this analysis include the ability of each parent to bear the increased costs of shared custody (including consideration of assets, liabilities, income levels and disparities) and the standard of living for the children in each household. 56 The parties are in disagreement about the comparative living standards between their homes. The respondent submits that the disparity warrants the set-off support amount, while the claimant submits that there is no real disparity in the standards of living at each home. 57 The bulk of the respondent’s argument centres on wanting to be able to enjoy more trips, excursions and meals outside the home with the Children. She also points to the fact that the claimant is intending to build or renovate a home in the near future. 58 The claimant claims that the respondent is currently able to enjoy many activities with the Children. Further, he submits that none of the respondent’s submissions reflects her husband’s income, which increases their household income by $379,656, according to her 2014 income tax return. Additionally, he submits that she has not reported the rental income from the basement suite, which is providing her with an additional tax-free income of between $1,000 and $1,500 per month. 59 The respondent admitted that the suite has been rented for the past 18 months, and that she did not claim it or include it in her Form F8. The claimant submits that both of these factors should be considered. 60 At this stage of the analysis, courts have considered the incomes of spouses by looking at the household income that is available to support the children: Franke v. Franke, 2008 BCSC 1145 (B.C. S.C.) at paras. 59-60; H. (M.D.) v. H. (M.N.), 2013 BCSC 248 (B.C. S.C.) at para. 40. Thus, it is clear that Mr. B.’s income is relevant for the purposes of assessing s. 9(c). E. (B.P.) v. E. (A.) L.D. Russell J. 93

61 In determining how to consider the rental income from the basement suite, I find the cases of Ortynski v. Ortynski, 2014 BCSC 73 (B.C. S.C.) and B. (J.L.) v. O. (M.D.), 2012 BCSC 1107 (B.C. Master) to be of assistance. 62 In Ortynski, the court was tasked with imputing incomes to the parties in the proceeding, in order to come up with a starting point for child support payments. One of the matters addressed in the decision was the existence of various unreported cash transactions done through the business. In grappling with this issue, the court rejected the assertion that all cash transactions were properly recorded in the books of account and so at para. 40 it imputed an amount to Mr. Ortynksi to reflect the transactions. 63 In B. (J.L.), unreported rental income from a lease was considered under s. 9(c). The court acknowledged that while the income should have been reported, the claimant would have been permitted to write off some expenses associated with the rental. However, it held at para. 37 that the rent receipts were relevant for the calculation of income for shared custody support calculations and to the apportionment of special and extraordinary expenses. Further, at para. 45 the court held that the rental revenue was relevant because the court “can consider all the financial resources of the claimant that ... [were not] included in the calculation of her Guideline income” under s. 9(c). 64 Thus, it is also relevant to consider that the rental income from the suite is extra income that is available to the respondent. 65 To complete the s. 9(c) analysis, I find that some of the principles for consideration under s. 4 can also be helpful. Though the s. 9 analysis is distinct from an analysis under s. 4, as the court stated in M. (S.R.) v. M. (N.G.T.), 2014 BCSC 442 (B.C. S.C.) at para. 116, the main consideration under both provisions is the “conditions, means, needs and other circumstances” of the children. 66 In the leading case on s. 4, Francis v. Baker, [1999] 3 S.C.R. 250 (S.C.C.), the Court enumerated a helpful principle for consideration of s. 9. In C. (R.A.) at para. 34, the court summarized this principle from Francis as follows: In situations where the table amount is so excessive in comparison to the reasonable needs of the children that support under the table is no longer just child support but a de facto wealth transfer or spousal support, the table amount should be reduced. This is in keeping with s. 26.1(2) of the Divorce Act which dictates that maintenance of chil- 94 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

dren, rather than household equalization or spousal support, is the object of support payments. 67 In H. (M.D.), at para. 61, under s. 9(c) the court considered a de facto wealth transfer to completely terminate ongoing child support, because when the income of the mother’s new husband was considered it was found that the child enjoyed a higher standard of living with the mother than with the father, such that requiring continued child support would effectively be a transfer of income that would exacerbate the unequal standard of living that the child experienced in each home. Thus, the court departed from the Guidelines and relieved the father of any ongoing child support obligations, even though his income was higher than the mother’s. 68 Given the high level of incomes in each household, I find this principle to be worthy of consideration. 69 In assessing all of the circumstances affecting the analysis under s. 9(c), I find that the Children are well cared for in the homes of both of their parents. While there may be some difference in household incomes, I find that the Children enjoy comfortable homes, vacations, outings and high standards of living at each of their parent’s homes. While the claimant may be considering renovations in the future, there has been evidence that the respondent herself, recently completed renovations on her home. 70 Considering the analysis completed under s. 9(b), where I found that the $7,900 per month that is currently paid is sufficient to meet the reasonable needs and expenses of the Children, I find that any amount above this would effectively be a transfer of wealth as between the two parties, or additional spousal support. To reiterate what the Court said in Francis, the goal of support payments is for maintenance of the Children and not for household equalization. For these reasons, I find justification in departing from the set-off amount. I find that $7,900 is an appropriate amount of child support and should continue to be paid by the claimant to the respondent each month.

Childcare Expenses 71 The respondent submits that the claimant should pay 50% of the childcare expenses for the years from 2012 to 2015. This amount, she submits, is $20,284.80. 72 The claimant acknowledges his obligation under the Agreement to pay for 50% of the mutually agreed upon childcare expenses that are required to permit either party to work. However, the claimant submits that E. (B.P.) v. E. (A.) L.D. Russell J. 95

a portion of the services provided to the respondent included cleaning and caring for her home, and were not necessitated by the respondent’s work schedule. He submits that no particulars have been presented to demonstrate what portion of these expenses relates to childcare during work hours. He submits that he will contribute to these expenses when particulars have been provided. 73 The respondent has given evidence that Ms. C. arrives early enough in the morning so that the respondent can work out before she goes to work; Ms. C. helps around the house, although she submits she mostly cleans up after the Children and helps to launder their school uniforms. She has said on occasion Ms. C. will come on weekends to help the Chil- dren clean their bathrooms, but when this happens her assistance is unpaid. 74 I agree with the respondent that she is entitled, as per the Agreement, to 50% of the childcare expenses required to permit her to work. How- ever, I find based on the evidence that not all of Ms. C.’s time can be attributed to childcare during work hours. As noted, the respondent admitted that Ms. C. comes early enough to permit her to work out, and I find that some of the housework done is for the benefit of the household and not solely attributable to the Children. 75 I have not been provided with a breakdown of the hours worked by Ms. C., nor whether any of this time can be attributable to the care of Mr. B.’s daughter. I find that the claimant should be responsible only for 50% of the portion of those costs that relate to the Children. 76 As such, I order the respondent to provide the claimant with particulars and a breakdown of the monthly costs the respondent incurred as a result of Ms. C.’s services. This breakdown should highlight the childcare services she provided for the Children, as opposed to those services that might be attributable to Mr. B.’s daughter or the respondent’s household generally. 77 Once these particulars have been provided, the claimant is to pay to the respondent 50% of the amount that is attributable to childcare for the Children, for his share of the childcare costs. 78 Since the claimant is willing to pay 50% of the portion attributable to the Children, the parties should be able to reach an agreement when this information is shared. If the parties are unable to reach agreement on their own, they may apply to the court for a determination. 96 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Section 7 Expenses 79 Under the current Agreement, the claimant pays 50% of the special and extraordinary expenses for the Children. The respondent is seeking to vary this figure, such that the claimant will be responsible for 84% of the special and extraordinary expenses from September 1, 2015 and ongoing. 80 Both parties have submitted calculations showing that the split based on apportioning the parties’ incomes is 83.6% to 16.4%; since there appears to be agreement on this figure I grant the respondent’s request. 81 The claimant will pay 84% of the special and extraordinary expenses from September 1, 2015 forward.

Tax Returns 82 The respondent seeks an order that the claimant delivers to the respondent his T-1 tax return and attached documents no later than April 30 of each year so long as any child remains a child of the marriage. 83 I order that both parties exchange these documents by April 30 of each year that any child remains a child of the marriage.

Conclusion 84 The respondent’s application for increased child support is dismissed. The claimant is to continue to pay child support to the respondent in the amount of $7,900 per month. 85 The claimant is responsible for 50% of the childcare costs for the Children; however, he is entitled to a breakdown of the services being provided by Ms. C. 86 As of September 1, 2015 forward, the claimant is responsible for 84% of the special and extraordinary expenses for the Children. 87 Each party is responsible for delivering their tax returns and attached documents to one another by April 30 of each year, so long as there remains a child of the marriage. 88 The claimant was successful on the major issue in this application, and is therefore entitled to his costs. Order accordingly. Elash v. Elash 97

[Indexed as: Elash v. Elash] Nicola Natasha Elash, Petitioner (Respondent) and Larry David Elash, Respondent (Applicant) Saskatchewan Court of Queen’s Bench Docket: Estevan DIV 2311/13 2015 SKQB 392 T.C. Zarzeczny J. Judgment: December 8, 2015 Family law –––– Domestic contracts and settlements — Validity — Formal validity — Form of agreement –––– Wife petitioned for divorce, spousal support and equal division of family property, as well as costs — Case was submitted to pre-trial settlement conference two years later — Issues were not settled — Approximately five weeks before scheduled commencement of trial, on September 23, husband initiated text messaging communications with wife inviting her to reconsider settling before going to court — Second series of text messaging communications occurred October 7 — Both communications involved exchange of proposals for settlement and prompted each of parties to consult with and instruct their legal counsel, who also exchanged communications — Husband contended that these communications constituted binding settlement, and applied for judgment enforcing settlement — Application granted — Initial text communication was simple and unambiguous, and evidenced that parties reached settlement of husband’s obligation to pay wife’s claim respecting family property — In October 7 text communication with husband, wife reaffirmed her preparedness to accept and reaffirmed her agreement to settle upon payment to her of $63,000 as these two parties had originally agreed — All essential terms were known to both parties and their solicitors — Revised draft Consent Judgment merely documented all essential terms by then and subsequently agreed upon in October 7 communication — Parties did conclude settlement and it should be enforced — Each party should assume their own costs. Civil practice and procedure –––– Disposition without trial — Settlement — Formation and validity — Miscellaneous –––– Text communications — Wife petitioned for divorce, spousal support and equal division of family property, as well as costs — Case was submitted to pre-trial settlement conference two years later — Issues were not settled — Approximately five weeks before scheduled commencement of trial, on September 23, husband initiated text messaging communications with wife inviting her to reconsider settling before going to court — Second series of text messaging communications occurred October 98 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

7 — Both communications involved exchange of proposals for settlement and prompted each of parties to consult with and instruct their legal counsel, who also exchanged communications — Husband contended that these communications constituted binding settlement, and applied for judgment enforcing settlement — Application granted — Initial text communication was simple and unambiguous, and evidenced that parties reached settlement of husband’s obligation to pay wife’s claim respecting family property — In October 7 text communication with husband, wife reaffirmed her preparedness to accept and reaffirmed her agreement to settle upon payment to her of $63,000 as these two parties had originally agreed — All essential terms were known to both parties and their solicitors — Revised draft Consent Judgment merely documented all essential terms by then and subsequently agreed upon in October 7 communication — Parties did conclude settlement and it should be enforced — Each party should assume their own costs. Cases considered by T.C. Zarzeczny J.: Combined Air Mechanical Services Inc. v. Flesch (2014), 2014 SCC 8, 2014 CarswellOnt 642, 2014 CarswellOnt 643, 37 R.P.R. (5th) 63, 27 C.L.R. (4th) 65, (sub nom. Bruno Appliance and Furniture Inc. v. Hryniak) 366 D.L.R. (4th) 671, 47 C.P.C. (7th) 1, 2014 CSC 8, (sub nom. Bruno Appliance and Furniture Inc. v. Hryniak) 453 N.R. 101, [2014] S.C.J. No. 8, 12 C.C.E.L. (4th) 63, (sub nom. Bruno Appliance and Furniture Inc. v. Hryniak) 314 O.A.C. 49, 21 B.L.R. (5th) 311, (sub nom. Bruno Appliance and Furniture Inc. v. Hryniak) [2014] 1 S.C.R. 126 (S.C.C.) — followed Gooding v. Gooding (2006), 2006 SKQB 400, 2006 CarswellSask 542, 283 Sask. R. 226 (Sask. Q.B.) — referred to Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1, (sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R. 51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — followed Kuhn v. Kuhn (2004), 2004 SKQB 166, 2004 CarswellSask 287, 247 Sask. R. 247, 3 R.F.L. (6th) 70, [2004] S.J. No. 272 (Sask. Q.B.) — referred to Lammens v. Lammens (2008), 2008 SKQB 205, 2008 CarswellSask 293, 52 R.F.L. (6th) 394, [2008] 9 W.W.R. 342, 317 Sask. R. 194 (Sask. Q.B.) — referred to Tether v. Tether (2008), 2008 SKCA 126, 2008 CarswellSask 651, 56 R.F.L. (6th) 250, 314 Sask. R. 121, 435 W.A.C. 121, [2009] 4 W.W.R. 274 (Sask. C.A.) — considered Statutes considered: Family Property Act, S.S. 1997, c. F-6.3 s. 40 — considered Elash v. Elash T.C. Zarzeczny J. 99

Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 s. 29 — considered Rules considered: Queen’s Bench Rules, Sask. Q.B. Rules 2013 Generally — referred to R. 1-2 — considered R. 1-3 — considered R. 1-3(2)(b) — considered R. 1-3(2)(c) — considered R. 1-3(2)(d) — considered R. 6-11 — referred to

APPLICATION by husband for judgment enforcing settlement agreement.

Drew R. Filyk, for Respondent, Applicant John M. Goby, for Petitioner, Respondent

T.C. Zarzeczny J.: Introduction 1 “Settlement” or “no settlement” is the issue raised by the application of Larry David Elash seeking judgment to be entered in court file number DIV 2311 of 2013 in the Judicial Centre of Estevan. Mr. Elash and Ni- cola Natasha Elash are husband and wife and by her petition issued April 11, 2013, Ms. Elash petitioned for divorce, spousal support and equal division of the family property. Her petition also sought costs, “double tariff based on the Respondent’s refusal to negotiate”. 2 The Elash case was submitted to a pre-trial settlement conference May 22, 2015. Both parties and their counsel were present at the conference. Notwithstanding undoubted efforts by all parties, the issues, primarily the division of family property, were not settled. In the result, trial dates were fixed for three days beginning November 3rd and continuing on the 4th and 5th, 2015. 3 Approximately five weeks before the scheduled commencement of the trial, Mr. Elash, on September 23rd, initiated text messaging communications with Ms. Elash inviting her “to reconsider settling before going to court”. A second series of text messaging communications occurred October 7. Both communications involved the exchange of proposals for settlement and prompted each of the parties to consult with and instruct their legal counsel, who also exchanged communications. 100 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

4 Mr. Elash and his counsel contend that these communications constituted a binding settlement, a view opposed by Ms. Elash and her counsel. These adverse positions prompted counsel for Mr. Elash to file a Notice of Application for Judgment dated October 29, 2015 [application]. It was that application which was heard at the scheduled commencement of the trial November 3, 2015.

The Issue 5 The sole issue to be determined upon the application before the court is whether or not the communications between Mr. and Ms. Elash and each of their legal counsel constituted a binding agreement for the settlement of the case - if so, the applicant seeks the court’s judgment to enforce the settlement. If not, the application will be dismissed and new trial dates will need to be scheduled.

The Facts 6 In the introductory portions of this judgment, I have sought to outline the basic circumstances that brings this application before the court. I note that both counsel, at the opening of the court’s hearing of this application, were given the opportunity, by me, to cross-examine either of the party deponents if they wished to do so. Both declined, advising the court they were content to proceed upon the materials as filed. 7 This case is a “family law case”, the petition having been issued some two and one-half years ago. The file reveals little activity other than the early filing of the respondent’s answer and counter-petition October 11, 2013 and the filing, by each of the parties, of financial and property statements and income tax returns. No applications were made for interim relief. The only court involvement occurred on May 22, 2015 when the parties, after filing pre-trial conference briefs, appeared for the pre- trial settlement conference. 8 The materials filed upon this application included the affidavit of Mr. Elash, sworn October 14, 2015 with exhibits (referenced as exhibits in this judgment), and the brief affidavit of Ms. Elash, sworn the same date. 9 The exhibits attached to Mr. Elash’s affidavit set out the communications that occurred between he and Ms. Elash as well as their legal counsel regarding settlement of this case. I note at this time that neither in Ms. Elash’s affidavit, nor in the submissions of her legal counsel on the hearing of this application, are any of these communications contested, re- Elash v. Elash T.C. Zarzeczny J. 101

futed or denied. Accordingly, I accept them as accurately reflecting the events and communications which they evidence. 10 Exhibit “A” to Mr. Elash’s affidavit contains the text communication exchanged between he and Ms. Elash September 23, 2015. This communication began the chronology of events which prompted Mr. Elash’s application for judgment. Because of its importance, I repeat it in full in this judgment: Sept 23 Larry Hi Nickie sorry to bother you I’d like you to reconsider settling before going to court. This is what I am willing to offer 60k. I’d like to remain friends and am not angry with you! I miss talking to you and friendship that we had. This offer is good til Friday at 4 oclock. Just a reminder. Larry Reminder that court do [sic] not recognize any pre trial offer. Hope to hearing [sic] from you and please give it serious thoights [sic] Nicola I really wish we had done this before I had to pay so much for lawyer fees how about u [sic] add $3000 to that so for some of my fees and we could settle Larry So 63k Nickie Nicola Yes Larry Thinking we have no more legal fees ad [sic] I [sic] have spent 7500 already. They are bad. Ok lets [sic] do it Nicola Yes it cost me at least twice that amount. Ok sounds good Larry Nickie will get my lawyer to send info to you ok? Am looking forward to talking with you and re- newing our friendship Nicola Ok just get him to send it to my lawyer plz [sic] Larry Ok will do 11 Subsequent to this September 23 text messaging exchange, Mr. Elash’s counsel, Mr. Drew Filyk, wrote to John Mark Goby, Ms. Elash’s counsel. In his email dated September 28, 2015, he reported, in part, “Larry & Nicola have agreed to terms. Draft judgment is attached to the letter. Please confirm she agrees, then I will put together the appl [sic] and other docs.” Attached to this communication was a letter written by 102 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Mr. Filyk to Mr. Goby attaching a Consent Judgment providing for a payment by Mr. Elash to Ms. Elash of $63,000.00, being the settlement amount agreed upon (Exhibit “B”). The Consent Judgment itemized the property which each party was to retain, the liability each party would assume for debts and the settlement of the spousal support claim. In- cluded at para. 3(b) was a reference to Ms. Elash owning land in Jamaica which she would retain. 12 Mr. Goby replied by email dated October 2, 2015 (Exhibit “C”) stating, in part, as follows: ... my client advises that Paragraph 3. B) of the draft Judgment is inaccurate as my client does not own any property in Jamaica. In addition, my client’s position is that for every required change to the draft Judgment, including the above noted change, the amount of the equalization payment in Paragraph 3. E) will increase by $2,000.00. Therefore, the equalization payment amount must now be $65,000.00. Please amend the draft Judgment in accordance with the above and provide an amended draft for review. 13 Perhaps not surprisingly, Mr. Filyk took great umbrage with Mr. Goby’s response (Exhibit “D”). There are two important observations that arise from that response. The first is that clearly Mr. Goby, as his response advised, had been in contact and consultation with his client, Ms. Elash. Secondly, there is no suggestion in the response that the parties did not reach an agreement - only that any required changes to the draft judgment proffered by Mr. Filyk (namely deletion of the reference to the Jamaican property) would result in an increase in the amount of the equalization payment by $2,000.00 per change. Applying that “penalty” clause as Mr. Filyk described it, prompted Mr. Goby to advise as he did in his October 2nd communication. 14 Mr. Filyk then revised the prior draft judgment he had prepared and sent it to Mr. Goby (Exhibit “D”) deleting the reference to Ms. Elash’s ownership of Jamaican property but keeping the equalization payment at $63,000.00. Mr. Goby responded on the same date, October 2, in part, “The increase in the equalization payment based on required changes was not my idea.” (Exhibit “E”) He additionally advised he would seek further instructions from his client. On Monday, October 5, he wrote Mr. Filyk (Exhibit “F”) advising: Please be advised that my client’s instructions are to advise that the settlement amount that she is prepared to agree to is $65,000.00. Elash v. Elash T.C. Zarzeczny J. 103

15 These circumstances prompted Mr. Elash to again attempt to engage with Ms. Elash by text October 7 (Exhibit “G”) with the following exchange: Oct 7 Larry Hi Nickie hope you are not angry anymore. Are we going to reach an agreement as i [sic] know both of us want to get it over with Nicola Ok Larry Ok? Nicola I did agree to something so I will stick to the agreement Larry Yes we did agreement [sic] to 63k Nicola OK Nicola Yes I will sign and send back to him Larry Ok and then I will drop off check [sic] 16 As this communication between these parties clearly identifies there is a re-affirmation of the prior agreement which they reached and Ms. Elash’s commitment to sign the settlement documents (Consent Judg- ment) and Mr. Elash’s commitment to pay the agreed amount by a cheque. 17 When advised of this, Mr. Filyk once again communicated the agreement to Mr. Goby by an email dated October 8 (Exhibit “H”) requesting that Mr. Goby sign and return to Mr. Filyk the revised Consent Judgment previously sent. Mr. Goby responded the same date (Exhibit “I”) indicating: Instructions received from my client today are that she is not prepared to agree to a settlement at $63,000.00 and we will proceed to trial. 18 This prompted Mr. Filyk to respond, on October 9, advising that so far as his client was concerned, a settlement was reached and that if it was not to be documented (by endorsing the draft Consent Judgment previously forwarded), an application would be made to the court for judgment to implement the terms of the settlement.

Analysis 19 The ground set out in Mr. Elash’s Application for Judgment placed reliance on s. 29 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01. It became evident during the hearing of it, however, that it also engaged 104 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

The Queen’s Bench Rules, particularly Part 6, Rule 6-11, and the court’s Foundational Rules, Division 1, Rule 1-3 especially subrules (b), (c) and (d). Following an observation made by the court, s. 40 of The Family Property Act, SS 1997, c F-6.3 also needed to be considered. 20 The court’s Foundational Rules, in the very first instance in Rule 1-2, recognize and provide that it is these rules which govern the practice and procedure in the Court of Queen’s Bench for Saskatchewan: “These rules govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer.” Rule 1-3 says, in part, that the purpose and intention of the rules is to provide a means by which claims can be justly resolved. It provides that the rules are intended to be used: 1.3(2) . . . (b) to facilitate the quickest means of resolving a claim at the least expense; (c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as is practicable; (d) to oblige the parties to communicate honestly, openly and in a timely way; ... 21 Rule 6-11 gives the court a discretion, where it is satisfied on the hearing of any application that it is conducive to the ends of justice to permit it, to direct that any application be turned into an application for judgment and it permits the court to pronounce judgment upon the application. 22 Section 40 of The Family Property Act provides as follows: 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. 23 In the context of this application, the principles and approaches of the court are plainly stated in the Foundational Rules and s. 40 of The Family Property Act. To the extent that the facts and circumstances of a case are found to fall within the scope of these Rules or s. 40 of The Family Pro- perty Act respecting settlement, s. 29 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 is recognized as supporting the issuance of a court judgment (See: Gooding v. Gooding, 2006 SKQB 400, esp para 19, 283 Sask. R. 226 (Sask. Q.B.); Kuhn v. Kuhn, 2004 SKQB 166, para 28, 247 Elash v. Elash T.C. Zarzeczny J. 105

Sask. R. 247 (Sask. Q.B.) and Lammens v. Lammens, 2008 SKQB 205, 317 Sask. R. 194 (Sask. Q.B.)). Their application to the facts and circumstances of each case, including the one now before the court, will vary based upon those facts and circumstances. 24 In the context of a family law case, the principles established in this legislative and regulatory framework have particular application. The amount involved, while significant to these parties, nevertheless must be considered in the context of the legal costs that would be incurred by each and both of these parties if they proceeded to a three day trial as was scheduled. Those legal costs to both parties, when considered in pro- portion to the amount agreed to be paid by Mr. Elash and received by Ms. Elash, would be substantial. Added to this proportionality analysis is the potential cost award that might be made in favour of the successful party against the unsuccessful one should a trial take place. Finally, as these proceedings illustrate, considerable costs are incurred by both parties arising out of the documentation of the settlement reached and now the argument upon this judgment application including preparation and filing of the briefs of counsel on it. That further now weighs to support the efforts that were made by these parties to settle and the responsibility of this Court to respect the settlement it reached. As the parties themselves recognized, the(a) settlement would avoid substantial legal costs. 25 In the case of Tether v. Tether, 2008 SKCA 126, 314 Sask. R. 121 (Sask. C.A.) [Tether], a family law case, the Saskatchewan Court of Ap- peal addressed the question of the inquiries that should be undertaken by a court when addressing the issue of whether or not the facts and circumstances of a case support a settlement. At para. 62, the court stated: 62 In summary, there can be three distinct lines of inquiry. Firstly, was there a “meeting of the minds”, or consensus ad idem, that was manifest to the reasonable observer. Secondly, was there consensus on all the essential terms of the agreement, for if a material term is not resolved, and is left vague and imprecise, without the tools to refine it, the agreement is illusory and the parties are simply asking the court to make an agreement for them. Thirdly, did the parties make their agreement conditional upon, and subject to, execution of a formal document. 26 The initial text communication September 23rd is simple and unambiguous. It evidences that these parties reached a settlement of Mr. Elash’s obligation to pay Ms. Elash’s claim respecting the family property. That communication clearly reflects that the parties had reached “a meeting of the minds” manifest to a reasonable observer. 106 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

27 As already noted in this judgment, subsequent to the September 23rd settlement, each of the parties consulted with their lawyers. Mr. Goby, sent his email to Mr. Filyk October 2nd (Exhibit “C”). In that communication, he did not deny or repudiate his client’s advice and instruction that a settlement occurred. He recognized that it should appropriately be documented by a Consent Judgment in the terms proffered by Mr. Filyk. That draft Consent Judgment included terms appropriate to the imple- mentation of the settlement of this action. Mr. Goby did require a change to be made respecting the reference to Ms. Elash’s ownership of the Jamaican property and then sought a change to the equalization amount to be paid from $63,000.00 to $65,000.00. 28 Mr. Goby’s imposition of the further “penalty” clause as Mr. Filyk would subsequently describe it, and which Mr. Goby subsequently advised was “not my idea”, requires comment. Whether this was intended by Mr. Goby and/or his client to reflect a “penalty” respecting required changes to the draft Consent Judgment or, as may be more likely, to de- fray any further or other legal costs which Ms. Elash might incur as a result of Mr. Goby’s further time required to ensure the Consent Judg- ment accurately reflected the matters addressed, is unknown. Suffice it to say that the introduction of this change was a unilateral position advanced by and on behalf of Ms. Elash. If not accepted it cannot be relied upon, by Ms. Elash, to vitiate the agreement otherwise reached between she and Mr. Elash. 29 Indeed, Ms. Elash must have recognized these very circumstances because subsequent to Mr. Goby raising this position on her behalf, she once again entered into a text communication with Mr. Elash October 7th. In that exchange, she reaffirmed her preparedness to accept, and reaffirmed her agreement to settle upon, the payment to her of the sum of $63,000.00 as these two parties had originally agreed. Implicitly, if not explicitly, this reaffirmation and reacceptance of the settlement terms was made after the first draft Consent Judgment was revised and after Ms. Elash’s solicitor’s proposal that the settlement amount should be increased to $65,000.00. All essential terms were, by then, known to both parties and their solicitors. The second “Tether test” is clearly satisfied. The revised draft Consent Judgment, rather than being a condition of settlement, merely documented all essential terms by then, and subsequently, agreed upon in the October 7th communication exchanged between these parties. The third Tether case inquiry has also been met. Elash v. Elash T.C. Zarzeczny J. 107

30 In the whole of the circumstances, and having regard particularly to the court’s Rules, s. 40 of The Family Property Act and the application of s. 29 of The Queen’s Bench Act, 1998 previously quoted, I have concluded that these parties did conclude a settlement and that it should appropriately be enforced by the court’s judgment. 31 In reaching this conclusion, I have had further regard to the recent decisions of the Supreme Court of Canada in the cases of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) [Hryniak] and com- panion case of Combined Air Mechanical Services Inc. v. Flesch, 2014 SCC 8, [2014] 1 S.C.R. 126 (S.C.C.) encouraging, as those cases do, the court, in the interests of affordability and the timely and just adjudication of claims, to take a robust approach to applications for judgment, whether summary or otherwise, in appropriate cases and circumstances (see esp. paras. 1-6, 29-32 of Hryniak). 32 Comment needs to be made with respect to Ms. Elash’s affidavit filed upon this application. In para. 3 of her short five paragraph affidavit, she refers to her exchange of text messages with Mr. Elash as “regarding the possibility of settling the within manner [sic] prior to trial” and that, “I considered the matter further and decided that I was not prepared to settle for the amount the respondent was offering”. In my view, this characterization of the text messaging exchange between she and Mr. Elash is not an accurate reflection of what occurred. It is self-serving and reveals that her position is a product of her change of mind. 33 While it may be that an individual may regret or have second thoughts about a settlement they agreed to, nevertheless, that position as it affects the question of settlement must be considered in the context of the whole circumstances. 34 Ms. Elash, and for that matter her counsel, Mr. Goby, were no stran- gers to the settlement process. They had prepared for and apparently fully participated in the court-led pre-trial settlement conference. It did not achieve a settlement. Nevertheless, both parties and their counsel recognized that it was the prerogative of either party not to agree to settle and to have the case adjudicated upon at trial. Indeed, the trial dates were set. 35 After these parties first settled through their exchange of text messages September 23rd, Ms. Elash clearly consulted with, and had the benefit of, Mr. Goby’s advice. Ms. Elash and Mr. Goby obviously reviewed the first draft Consent Judgment in detail and this review no doubt prompted Ms. Elash to advise Mr. Goby that she did not own land 108 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

in Jamaica as apparently Mr. Elash believed was the case. These consultations between Ms. Elash and Mr. Goby would certainly have presented the opportunity for repudiation of the agreement reached had there been any doubt on that matter. That was not the case. 36 Subsequent to these consultations between Ms. Elash and her legal counsel (as a consequence of which the “penalty” position was advanced by Mr. Goby), Ms. Elash entered into the second text messaging exchanges. She re-confirmed the settlement, including acceptance of an equalization payment of $63,000.00 and implicitly, if not explicitly, all the terms of the now two drafts of the Consent Judgment. This second exchange occurred almost two weeks after the first exchange (September 23rd) and almost a week after Ms. Elash had consulted with Mr. Goby leading to the exchanges between legal counsel already reference in my judgment. 37 Nor is there any foundation in the facts to support her contention, in para. 4 of her affidavit, that Mr. Elash was repeatedly texting her and her conclusion that she was feeling “a lot of pressure from the respondent to try to force and intimidate me into a settlement.” When one examines the actual communications (Exhibits “A” and “G”), they are respectful and friendly in tone. They have no element of threats or intimidation. Ms. Elash’s responses, including her input to the settlement figure proposed by Mr. Elash in the first communication, do not contain any hint of pressure as she now suggests existed. At no time was it suggested by Mr. Goby, in any communication he sent on her behalf to Mr. Filyk after consultation with her regarding the settlement generally and in particular the first draft of the Consent Judgment, that any of the matters which she now claims in para. 4 of her affidavit, existed.

Conclusions 38 I have concluded that a legally enforceable settlement was entered into between Mr. and Ms. Elash and that it is binding upon her in full settlement and satisfaction of the claims that she has advanced in her petition before the court. In the result, I order and direct that the second draft Consent Judgment prepared and proffered by Mr. Filyk be issued.

Costs 39 Both parties have no doubt expended further and additional legal costs as a result of this application for judgment and opposition to it. During argument on the application, Mr. Filyk indicated to the court that Elash v. Elash T.C. Zarzeczny J. 109 notwithstanding all that had occurred, his client, Mr. Elash, was nevertheless prepared to pay Ms. Elash $65,000.00 if the court should find that the settlement, at that figure as proffered by Mr. Goby at one point in time, should be found to be both extant and accepted by Mr. Filyk on Mr. Elash’s behalf. While that has not been the finding of the court, nevertheless that position, combined as it is with the fact that with this result both parties are spared the further and additional substantial cost of a trial, prompts me to not award any costs of this application to either party. I determine, therefore, that each party should assume their own costs and I so order. Application granted. 110 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Children’s Aid Society of Ottawa v. F. (K.)] In the Matter of the Child and Family Services Act, R.S.O. 1990 In the Matter of L.L. and J.L. Children’s Aid Society of Ottawa, Applicant/Respondent and K.F. (Mother) L.F. and L.E.F. (Maternal Grandparents), Respondents/Moving Parties Ontario Superior Court of Justice Docket: Ottawa FC-11-1819 2015 ONSC 7580 J. Mackinnon J. Heard: October 1-2, 5-9, 13-14, 2015 Judgment: December 3, 2015 Aboriginal law –––– Constitutional issues — Canadian Charter of Rights and Freedoms –––– Children’s Aid Society (“CAS”) applied for order for Crown wardship of two aboriginal children — Maternal grandparents brought application challenging constitutional validity of definitions of “Indian” and “native person” in s. 37(4) of Child and Family Services Act (“CFSA”) — They submitted that definitions were contrary to s. 35(2) of Constitution Act, 1982 and s. 15(1) of Canadian Charter of Rights and Freedoms and sought declaration under s. 52 of Constitution Act that to extent of inconsistency, CFSA definitions were of no force or effect — Grandparents’ application dismissed — Under s. 15 of Charter, everyone has right to equal benefit of law without discrimination based on race, national or ethnic origin — There clearly is distinction in CFSA’s treatment of “Indian[s]” and “native person[s]”, as defined therein, and CFSA’s treatment of other individuals, including those with aboriginal heritage — In child protection proceedings involving former group, various provisions for “In- dian[s]” and “native person[s]” must be applied by court — “Ethnic origins” of subject children included Algonquin or, more broadly, aboriginal ethnicity — Differential treatment under CFSA based on their being Algonquin would fall within enumerated ground of “national or ethnic origin” — However, distinction drawn by CFSA definition of “Indian” is based on status, not ethnicity — Ethnicity or related concept of ancestry does not determine whether person has Indian status — Differential treatment of individuals with aboriginal ancestry on basis that they do not also have legal Indian status or membership in “native community” is not differential treatment within enumerated ground of “national or ethnic origin” — However, ground of distinction in this case, namely Aborig- inal ancestry without Indian status or membership in “native community,” is Children’s Aid Society of Ottawa v. F. (K.) 111 analogous ground — No evidence was led that tended to show outcomes for “In- dian[s]” or “native child[ren]” placed in accordance with s. 57(5) of CFSA, which mandates placement with child’s family, band or “another Indian or native family” were different or better than outcomes for children with aboriginal heritage but no status or native community membership who were placed in accordance with s. 57(4), which merely directs court to consider cultural background — Without knowing how those provisions impact children to whom they are applied, it is unclear whether definitions excluding non-status aboriginals from their application create disadvantage and therefore are discriminatory under s. 15(1) of Charter — CAS application for Crown wardship granted. Aboriginal law –––– Family law — Children in need of protection –––– Two Aboriginal children were apprehended out of concern for partner violence in mother’s previous relationship, substance abuse issues, parenting skills and criminal record of mother’s current partner — Children’s Aid Society (“CAS”) applied for order for Crown wardship — Parents and maternal grandparents jointly submitted that children were better off with their family, to whom they were clearly attached, and with whom they could maintain and develop their aboriginal cultural identity — In their joint submission, both family plans provided sufficient supports to meet needs of children and to satisfy court that they would be well cared for — Their joint submission prioritized parents’ plan in home of paternal grandparents and offered maternal grandparents’ home as acceptable alternative — CAS application granted — Both children had been for well over permitted time period of 12 months and possible six-month extension established by CFSA — Best interests of children at present were supported by order of Crown wardship — Children had been in limbo for too long to now embark upon plan that would not, on balance of probabilities, become permanent in short order — Mother’s plan did not provide sufficient indicia of permanency for children who had been in care for 34 months — It was not in best interests of children to be placed in maternal grandparents’ home — Court was not satisfied plan was really intended as final permanent placement for children rather than becoming stepping stone to future status review application by mother seeking placement of children with her — It was not lost on court that maternal grandparents at all times took back seat to their daughter’s plans — Ongoing order for access between children, their maternal grandparents and their mother would reasonably address issue of preserving the children’s aboriginal cultural background — Access-right holder should be adults so that they would be able to seek openness in event of adoption placement being made for children — It was not disputed that test to award access to Crown ward had been met with respect to all three adult individuals — Maternal grandparents and mother entitled to weekly access visit to children — Although children were not Indian children as defined in CFSA, Ontario Court of Appeal decision held that maintaining children’s native heritage and culture was one important factor but not only factor in determining their best interests — Order for Crown wardship 112 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

with access between children, their maternal grandparents and their mother issued for both children. Aboriginal law –––– Constitutional issues — Constitution Act, 1982 –––– Two aboriginal children were apprehended — Children’s Aid Society (“CAS”) applied for order for Crown wardship — Maternal grandparents brought application challenging constitutional validity of definitions of “Indian” and “native person” in s. 37(4) of Child and Family Services Act (“CFSA”) — Grandparents submitted that definitions were contrary to s. 35(2) of Constitution Act, 1982 and s. 15(1) of Canadian Charter of Rights and Freedoms and sought declaration under s. 52 of Constitution Act that to extent of inconsistency CFSA, definitions were of no force or effect — Grandparents’ application dismissed — Provisions applicable to “Indian” or “native child” in CFSA are not applicable to every aboriginal child coming within definition of “Aboriginal Peoples of Canada” in s. 35(2) of Constitution Act — This does not lead to declaration sought — Sec- tion 35 of Constitution Act protects specific rights of aboriginal peoples of Can- ada — There is no claim that definitions breach any aboriginal or treaty right protected under s. 35 — Law that does not breach those protected rights, whether it applies to all or only some of aboriginal peoples of Canada, does not violate s. 35 of Constitution Act, and is not caught by s. 52 — CAS application for Crown wardship granted. Cases considered by J. Mackinnon J.: Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew (2014), 2014 ONCA 646, 2014 CarswellOnt 12889, 50 R.F.L. (7th) 272, [2014] O.J. No. 4485, 325 O.A.C. 94 (Ont. C.A.) — considered B. (S.) v. Children’s Aid Society of Algoma (2002), 2002 CarswellOnt 5211, [2002] O.J. No. 101 (Ont. S.C.J.) — considered Catholic Children’s Aid Society of Toronto v. C. (B.) (2004), 2004 ONCJ 27, 2004 CarswellOnt 1668, [2004] 3 C.N.L.R. 51, [2004] O.J. No. 1748 (Ont. C.J.) — considered Children’s Aid Society of Ottawa v. F. (K.) (2013), 2013 ONSC 7207, 2013 CarswellOnt 15911, [2013] O.J. No. 5306 (Ont. S.C.J.) — referred to Children’s Aid Society of Sudbury & Manitoulin (Districts) v. D. (D.) (2009), 2009 CarswellOnt 7936, 79 R.F.L. (6th) 193 (Ont. S.C.J.) — considered Corbiere v. Canada (Minister of Indian & Northern Affairs) (1999), [1999] S.C.J. No. 24, 239 N.R. 1, 1999 CarswellNat 663, 1999 CarswellNat 664, (sub nom. Corbi`ere v. Canada (Minister of Indian & Northern Affairs)) 173 D.L.R. (4th) 1, (sub nom. Canada (Minister of Indian & Northern Affairs) v. Corbiere) 61 C.R.R. (2d) 189, [1999] 3 C.N.L.R. 19, [1999] 2 S.C.R. 203, 163 F.T.R. 284 (note) (S.C.C.) — distinguished Daniels v. Canada (Minister of Indian Affairs and Northern Development) (2014), 2014 FCA 101, 2014 CAF 101, 2014 CarswellNat 1076, 2014 Car- swellNat 1077, 371 D.L.R. (4th) 725, 457 N.R. 347, [2014] 3 C.N.L.R. 139, Children’s Aid Society of Ottawa v. F. (K.) 113

309 C.R.R. (2d) 200, (sub nom. Daniels v. Canada (Indian Affairs and Northern Development)) [2014] 4 F.C.R. 97 (F.C.A.) — followed Droit de la famille - 091768 (2013), 2013 SCC 5, 2013 CarswellQue 113, 2013 CarswellQue 114, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191, (sub nom. A. v. B.) 439 N.R. 1, [2013] S.C.J. No. 5, (sub nom. Quebec (Attorney General) v. A.) 273 C.R.R. (2d) 1, (sub nom. Quebec (Attorney General) v. A.) [2013] 1 S.C.R. 61 (S.C.C.) — referred to M. (C.) v. Children’s Aid Society of the Regional Municipality of Waterloo (2015), 2015 ONCA 612, 2015 CarswellOnt 13733, 389 D.L.R. (4th) 725 (Ont. C.A.) — considered Moysa v. Alberta (Labour Relations Board) (1989), 34 C.P.C. (2d) 97, [1989] 1 S.C.R. 1572, [1989] 4 W.W.R. 596, 60 D.L.R. (4th) 1, 96 N.R. 70, 67 Alta. L.R. (2d) 193, 97 A.R. 368, 89 C.L.L.C. 14,028, 40 C.R.R. 197, 1989 CarswellAlta 86, 1989 CarswellAlta 616, EYB 1989-66920, [1989] S.C.J. No. 54 (S.C.C.) — considered R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car- swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161, 198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — considered R. v. Ipeelee (2012), 2012 SCC 13, 2012 CarswellOnt 4375, 2012 CarswellOnt 4376, 91 C.R. (6th) 1, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 428 N.R. 1, 288 O.A.C. 224, [2012] S.C.J. No. 13, 318 B.C.A.C. 1, [2012] 1 S.C.R. 433, 541 W.A.C. 1, 113 O.R. (3d) 320 (note) (S.C.C.) — considered R. v. Kapp (2008), 2008 SCC 41, 2008 CarswellBC 1312, 2008 CarswellBC 1313, 79 B.C.L.R. (4th) 201, [2008] 8 W.W.R. 1, 37 C.E.L.R. (3d) 1, 232 C.C.C. (3d) 349, 294 D.L.R. (4th) 1, 376 N.R. 1, [2008] 3 C.N.L.R. 346, 58 C.R. (6th) 1, 256 B.C.A.C. 75, 431 W.A.C. 75, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 175 C.R.R. (2d) 185 (S.C.C.) — referred to Reference re Whether the Term “Indians” in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec (1939), [1939] S.C.R. 104, [1939] 2 D.L.R. 417, 1939 CarswellNat 48, [1939] S.C.J. No. 5 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 1 — considered s. 15(1) — considered Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 1(2) ¶ 5 — considered s. 3(1) “band” — considered s. 3(1) “Indian” — considered s. 3(1) “native community” — considered 114 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

s. 3(1) “native person” — considered s. 34(10)(f) — referred to s. 37(3) — considered s. 37(4) — considered s. 37(5) — referred to s. 39 — referred to s. 47(2)(c) — referred to s. 57(3) — considered s. 57(4) — considered s. 57(5) — considered s. 61(2)(d) — referred to s. 70(1)(a) — considered s. 136(3) — referred to s. 209 — considered Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 s. 91 — considered s. 91 ¶ 24 — considered s. 92 — considered Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44 Generally — referred to s. 35 — considered s. 35(2) — considered s. 52 — considered s. 52(1) — considered Indian Act, R.S.C. 1985, c. I-5 Generally — referred to s. 2(1) “Indian” — considered s. 6(1) — referred to s. 6(2) — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 11(2.1) [en. O. Reg. 91/03] — considered Words and phrases considered: ethnic “Ethnic” is defined by the Shorter Oxford English Dictionary as “(Of a population group) sharing a distinctive cultural and historical tradition, often associated with race, nationality, or religion, by which the group identifies itself and others recognize it; belonging to or characteristic of such a group. . .” [Shorter Oxford English Dictionary, 5th ed, sub verbo] Children’s Aid Society of Ottawa v. F. (K.) 115

native person “Indian” and “Native Person” are also defined terms in the CFSA [Child and Family Services Act R.S.O. 1990, c. C.11]: In this Act, “Indian” has the same meaning as in the Indian Act (Canada) [R.S.C. 1985, c. I-5]; (“Indien”) “native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning; (“autochtone”, “enfant autochtone”) The CFSA definition of “native person” incorporates the terms “band” and “native community”, which also have specific meanings in the CFSA: “band” has the same meaning as in the Indian Act (Canada); (“bande”) “native community” means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services); (“communaut´e autochtone”) ... There clearly is a distinction in the CFSA’s treatment of “Indian[s]” and “native person[s]”, as defined therein, and the CFSA’s treatment of other individuals, including other individuals with Aboriginal heritage. In child protection proceedings involving the former group, various provisions for “Indian[s]” and “native person[s]” must be applied by the court. Among other things, this means: that the band or native community of an “Indian” or “native child” is a party to the proceedings and must be notified of the proceedings (CFSA, s. 39); that the importance of preserving the child’s cultural identity must be considered by the judge in determining what is in the child’s best interests (CFSA, s. 37(4)); and that, if the court makes an order removing the child from the person who had charge of him or her before the intervention of the Society, the court must place the child: with a member of his or her extended family, band or native community; or with another Indian family, absent “a substantial reason for placing the child elsewhere” (CFSA, s. 57(5)). The latter group is not entitled to the mandatory application of these provisions and, in fact, cannot access them at all. ... As the Royal Commission on Aboriginal Peoples [RCAP] reported: Recognition as ‘Indian’ in Canadian law often had nothing to do with whether a person was actually of Indian ancestry. [Looking Forward, Looking Back. Vol.1. Report of the Royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply and Services, 1996.] ... 116 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[T]he designation of “native communit[ies]” (and thus the designation of “native person[s]”) is based on (a) geographical location, (b) the manner of operation of the First Nations community and (c) band status under the Indian Act. super-weighted The appellants submitted that in determining the best interests of an Indian child status must be given more weight than the other factors or, in other words, “super-weighted”. [Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew 2014 ONCA 646, 50 R.F.L. (7th) 272 (Ont. C.A.)]

APPLICATION for Crown wardship of two aboriginal children.

Marguerite Lewis, for Applicant Karen Leef, for K.F. Kristen Robins, for L.F. and L.E.F.

J. Mackinnon J.:

1 The two children who are the subject of this case, L.L. and J.L., came into care on February 4, 2013. They are now five and three years of age. In September and October 2013 I heard a status review application pertaining to them and made an order for Crown wardship with supervised access to the maternal grandparents on a once weekly basis. In so doing I dismissed the maternal grandparents’ cross application seeking placement of the children with them. I also dismissed the mother’s cross application seeking placement of the children with her, or if Crown wardship was ordered, an access order in her favour. 2 My reasons for judgment in the 2013 trial are available at [2013] O.J. No. 5306 (Ont. S.C.J.). 3 The maternal grandparents appealed from my order. Their appeal was heard in Divisional Court on October 30, 2014. That day, Matlow J. endorsed the record for the panel, allowing the appeal and setting aside the Crown wardship order on the following terms: • the proceedings are returned to the trial judge for reconsideration of her order in view of the application of s. 37(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA]; • for such purpose the parties are entitled to adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge; and • counsel shall contact the trial judge for directions so that the reconsideration can proceed as expeditiously as reasonably possible. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 117

4 Section 37(4) of the CFSA provides as follows: Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. R.S.O. 1990, c. C.11, s. 37 (4). 5 “Indian” and “Native Person” are also defined terms in the CFSA: In this Act, ..... “Indian” has the same meaning as in the Indian Act (Canada); (“Indien”) ..... “native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning; (“autochtone”, “enfant autochtone”) 6 The CFSA definition of “native person” incorporates the terms “band” and “native community”, which also have specific meanings in the CFSA: “band” has the same meaning as in the Indian Act (Canada); (“bande”) ..... “native community” means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services); (“communaut´e autochtone”) 7 I received the Divisional Court endorsement and contacted counsel on November 11, 2014. I directed them to contact the Trial Office to schedule an early date for the reconsideration. 8 Before doing so counsel requested an appearance before me for directions. The Children’s Aid Society [CAS] submitted that as part of the reconsideration I should determine whether s. 37(4) had any application to these children. The maternal grandparents submitted that the Divi- sional Court had already determined that it did apply to the children. 9 My endorsement dated January 9, 2015 reads in part as follows: [3] In its reasons the Divisional Court stated that it had not been sufficiently brought to the attention of the trial judge that the children were of “Canadian Indian ancestry” and were entitled to the “protection” of s. 37(4). The proceedings were returned to the trial judge for 118 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

“reconsideration in view of the application of s. 37(4).” Divisional Court also ruled the parties shall be entitled to “adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge.” [4] There was no evidence at the trial capable of bringing these children within the meaning of “Indian or native person” as defined in the CFSA. The grandparents did bring a motion to introduce fresh evidence on appeal. The motion was allowed. The fresh evidence included an affidavit deposed by the grandfather describing his non status aboriginal ancestry. In his affidavit he also deposed that his [previous] lawyer advised him that non status Indians are “Indians” within s. 91 (24) of the Constitution Act, 1867. That section enumer- ates the distribution of powers to the federal parliament, including “Indians and lands reserved for the Indians”. It does not assist in knowing whether the children in the case at hand come within the definition of “Indian or native person” as contained in the CFSA. The fresh evidence before the Divisional Court did not address whether these children were or were entitled to be registered under the Indian Act, or whether they were part of a native community designated by the Minister under the applicable provincial statute. These are the relevant criteria to the application of s. 37(4). [5] I note that the grandparents’ counsel did not submit that the evidentiary record available to Divisional Court did address the requisite criteria or was capable of supporting a finding that the children are Indians or native persons as defined. The submission was simply that the finding had been made and that the CAS could have appealed from it to the Court of Appeal. [6] In that neither the evidentiary record at trial or on appeal actually addressed the facts necessary to be proven to support a finding that these children fall within the scope of s. 37(4) of the CFSA, I am of the view that this inquiry must be included as part of the reconsideration ordered by Divisional Court. Rather than conclude that the Divi- sional Court made an unsupported finding and that I should proceed to conduct a reconsideration of my previous order in any event, it makes sense that I should hear evidence and receive submissions on both issues. In this way, if I am wrong in my ruling on the import of the Divisional Court order, any further appeal will take place on a complete evidentiary record. This is in keeping with the policies of the law favouring both judicial economy and a timely conclusion to child protection litigation. 10 In directing the reconsideration the Divisional Court panel appears to have intended a focussed hearing, but that Court had nevertheless set Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 119

aside the Crown wardship order. Procedurally this enabled both the mother and her parents to file amended answers and plans of care. Rule 11(2.1) of the Family Law Rules, O. Reg. 114/99, provides: 11. (2.1) In a child protection case, if a significant change relating to the child happens after the original document is filed, (a) the applicant may serve and file an amended application, an amended plan of care or both; and (b) the respondent may serve and file an amended answer and plan of care. O. Reg. 91/03, s. 3. 11 Those steps and the passage of so much time meant that the “reconsideration” took on quite a different complexion than the Divisional Court panel may have intended. Given the amended pleadings, the “reconsideration” was a trial of the status review application brought by the CAS in 2013 but based on the up-to-date circumstances of the parties and the children. 12 A trial date was scheduled for April 21, 2015. 13 Meanwhile, pending the maternal grandparents’ appeal, the CAS had decided it was appropriate to allow the mother to join in her parents’ access visits with the children. 14 In addition, during the fall of 2014 the CAS learned that the mother was pregnant. She and the expectant father, B.M., agreed to accept voluntary pre-natal services from the CAS. The CAS engaged in evaluating their plan for their new baby. Baby T. was born in January 2015. The CAS did not apprehend and continued to work with the parents on a voluntary basis after his birth. 15 By the time of the settlement conference held in March 2015, the mother and B.M. were proposing a plan for L.L. and J.L. that would involve all three children living with them. Following that settlement conference the trial was put over to June 29, 2015, presumably to give their plan a chance. 16 The viability of the plan was in question when on June 11 the maternal grandparents delivered a Notice of Constitutional Question challenging the validity of the definitions of “Indian “and “native person” in the CFSA. The basis of the challenge was that the definitions were contrary to section 35(2) of the Constitution Act, 1982 and section 15(1) of the Canadian Charter of Rights and Freedoms. An amended Notice of Con- stitutional Question was delivered on June 18. 120 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

17 The mother and her partner quickly suggested an alternate plan; the trial and the motion to determine the constitutional question were both adjourned, to September 21. 18 The new plan proposed that the mother, B.M., their new baby and L.L. and J.L. would move in with B.M.’s parents (the paternal grandparents of baby T.; also referred to in this way for all three children in these reasons) and his younger sibling who still lives at home. The paternal grandparents would provide supervision and hands-on parenting instruction. 19 This plan required the CAS to conduct a Kin Assessment of the paternal grandparents. The Kin Assessment process commenced in August 2015. On September 10, the CAS reached the conclusion that it could not support the placement of L.L. and J.L. in the paternal grandparents’ home. This was communicated to the parents and paternal grandparents on September 14. The responding parties then requested a short adjournment of the trial, which was granted, to October 1. 20 In this way a full two years elapsed from when I had first commenced the status review hearing in September 2013 to the commencement of the “reconsideration” hearing. 21 When the trial did resume in October 2015, it was common ground that no party and neither child fell within the applicable definition of “In- dian” or “native person”. The evidence was that the maternal grandfather and, through him, the mother and her children, are of Aboriginal ancestry, of Algonquin descent, and are non-status Indians. 22 What should now be apparent is that an appeal was allowed for the purpose of a reconsideration of the applicability of a section of the CFSA, now admitted not to be applicable to these children — unless through the success of a constitutional challenge raised for the first time long after the initial trial and the appeal. The intervening time and events have provided the mother the opportunity to develop not one but two alternate plans to have L.L. and J.L. placed in her care. Her parents, who were the successful appellants, are, as they had done in 2013, supporting the mother’s plan and putting themselves forward as an alternative plan for the children. 23 Two small children who came into care at ages eleven months and twenty-seven months remain in legal limbo, thirty-four months later. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 121

The Constitutional Question 24 The constitutional question raised by the maternal grandparents, and supported by the mother, is whether the definitions of “Indian” and “native person” contained in the CFSA are unconstitutional in that they: (a) are inconsistent with the definition of “Aboriginal Peoples of Can- ada” contained in s. 35(2) of the Constitution Act, 1982; (b) contravene s. 15(1) of the Charter in that they discriminate on the basis of Indian status and native community of origin (and this violation of s. 15(1) cannot be “saved” under s. 1).

The Statutory Framework 25 As noted above the CFSA refers to the Indian Act, R.S.C. 1985, c. I-5, for its definition of “Indian”. The Indian Act definition is: 2. (1) In this Act, ... “Indian” « Indien » “Indian” means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; 26 Sections 3(1) and 209 of the CFSA define “native community”: 3(1) In this Act, ... “native community” means a community designated by the Minister under section 209... 209 The Minister may designate a community, with the consent of its representatives, as a native community for the purposes of this Act. R.S.O. 1990, c. C.11, s. 209. 27 Other sections of the CFSA of particular relevance are ss. 1(2)¶5 and 57(5): 1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are: ... 5 To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1. 122 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

..... 57(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with, (a) a member of the child’s extended family; (b) a member of the child’s band or native community; or (c) another Indian or native family. R.S.O. 1990, c. C.11, s. 57 (5). 28 There are also special service, notice and consultation requirements for the band or native community of an Indian or native child. Numerous provisions require additional consideration of “Indian and native culture, heritage and traditions”. See, for example, ss. 34(10) (f), 37(4)-(5), 47(2) (c), 61(2) (d) and 136(3). 29 The relevant provisions of the Constitution Act, 1982 are set out here: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and M´etis peoples of Canada. 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitu- tion is, to the extent of the inconsistency, of no force or effect.

The Positions of the Parties 30 The moving parties point to the inconsistency between the definitions in the CFSA and the definition of “Aboriginal Peoples of Canada” in section 35(2) of the Constitution Act, 1982 as a basis for striking down the CFSA definitions pursuant to s. 52(1) of the Constitution Act, 1982. They also submit that the definitions in question create a distinction based on national or ethnic origin. In particular their argument is that the definitions create a distinction between (a) status and eligible for status Indians Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 123

and members of the thirteen communities served by the Dilico Child and Family Services (designated as “native communities” by the Minister pursuant to s. 209 of the CFSA) and (b) all other Aboriginal persons. The moving parties further submit that the distinction, and resulting differential treatment, creates a disadvantage for those not within the defined group, thereby breaching section 15(1) of the Charter. Their submission is that the infringement cannot be saved by s. 1 of the Charter. They ask the court to read in a constitutionally compliant definition that includes all Aboriginal persons of Canada. 31 The CAS submits that the court should not decide the constitutional question because so doing would not “change anything” in this case. The Society says it treated the family exactly as it would have treated any family in which a child qualified as “Indian” or as a “native child”. The CAS also submitted there was an insufficient evidentiary record on which to decide the constitutional question. 32 The CAS took no position in respect of the specific constitutional issues raised. It did submit that if the court found the provisions did offend the Constitution, the remedy should simply be to treat this case as if the children were “Indian” and to apply ss. 37(4) and 57(5) to them when considering the merits of the case to be presented at the trial.

Analysis of the Constitutional Issues 33 I will address the constitutional arguments in the following order: first, the Constitution Act, 1982, s. 35(2) argument; then, second, the Charter, s. 15(1) argument, including the issue of whether the constitutional question should be decided in this case (i.e. whether it is necessary to do so and whether there is a factual basis for doing so in this case). Finally, having regard to the conclusion I have reached, I will comment briefly on the approach I would have taken to a remedy, had I found a constitutional invalidity.

The s. 35(2) Argument 34 The first submission on behalf of the moving parties is that on a plain reading the definitions of “Indian” and “native person” in the CFSA are inconsistent with s. 35(2) of the Constitution Act, 1982. For that reason, the moving parties ask for a declaration under s. 52(1) that to the extent of the inconsistency the CFSA definitions are of no force or effect. 35 The provisions applicable to an “Indian” or “native child” in the CFSA are not applicable to every Aboriginal child coming within the 124 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

definition of “Aboriginal Peoples of Canada” in s. 35(2) of the Constitu- tion Act, 1982. In my view this does not lead to the declaration sought. Section 35 protects specific rights of the Aboriginal peoples of Canada. There is no claim that the definitions breach any Aboriginal or treaty right protected under s. 35. A law that does not breach those protected rights, whether it applies to all or only some of the Aboriginal peoples of Canada, does not violate s. 35, and is not caught by s. 52. 36 The moving parties submit, in support of their s. 35(2) argument, that the Inuit of Quebec were found to fall within Parliament’s jurisdiction under s. 91(24) of the Constitution Act, 1867 in the ‘Eskimo Reference’ (Reference re Whether the Term “Indians” in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec, [1939] S.C.R. 104 (S.C.C.)). They also note that the issue of whether non-status Indians fall within s. 91(24) is raised in Daniels v. Canada (Minister of Indian Affairs and Northern Development), which was heard by the Supreme Court of Canada on October 8, 2015 on appeal from the Federal Court of Appeal decision reported at 2014 FCA 101, 371 D.L.R. (4th) 725 (F.C.A.) [Daniels]. 37 It is not clear to me how either case affects the constitutional validity of the definitions in the CFSA. Both are decisions as to the scope of legislative authority under sections 91 and 92 of the Constitution Act, 1867. If it is decided that Parliament could validly enact laws that apply to non- status Indians and other Aboriginal peoples, it would not follow that Par- liament must legislate with respect to that group or must include that group in the definition of “Indian” under the Indian Act. 38 The moving parties also referred to the Ministry of Children and Youth Services of Ontario’s Report on the 2015 Review of the CFSA in their s. 35(2) argument. In this report, participants in the review are reported as being “virtually unanimous in calling for revisions to the terms ‘Indian,’ ‘native person’ and ‘native community’ in the CFSA.” The report also recommended that any expanded definition incorporate s. 35 of the Constitution Act, 1982 while retaining flexibility for those who self- identify as Aboriginal. 39 In my view the fact that participants in the 2015 review of the CFSA called for revisions to these definitions has no bearing on their constitutional validity. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 125

The s. 15(1) Argument 40 Turning to the next argument, the test for a violation of s. 15(1) of the Charter is: (1) Does the law in question create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage (which need not specifically perpetuate prejudice or stereotyping)?1 41 There clearly is a distinction in the CFSA’s treatment of “Indian[s]” and “native person[s]”, as defined therein, and the CFSA’s treatment of other individuals, including other individuals with Aboriginal heritage. In child protection proceedings involving the former group, various provisions for “Indian[s]” and “native person[s]” must be applied by the court. Among other things, this means: that the band or native community of an “Indian” or “native child” is a party to the proceedings and must be notified of the proceedings (CFSA, s. 39); that the importance of preserving the child’s cultural identity must be considered by the judge in determining what is in the child’s best interests (CFSA, s. 37(4)); and that, if the court makes an order removing the child from the person who had charge of him or her before the intervention of the Society, the court must place the child: with a member of his or her extended family, band or native community; or with another Indian family, absent “a substantial reason for placing the child elsewhere” (CFSA, s. 57(5)). The latter group is not entitled to the mandatory application of these provisions and, in fact, cannot access them at all. 42 The question then becomes whether the exclusion of other individuals with Aboriginal heritage (i.e. other than “Indian[s]” or “native person[s]”) from the application of these provisions is a distinction made on an enumerated or analogous ground. 43 The moving parties submit that the distinction is made on the basis of the enumerated ground of “national or ethnic origin”, or alternatively on the proposed analogous ground of “Indian status and native community of origin”. 44 “Ethnic” is defined by the Shorter Oxford English Dictionary as “(Of a population group) sharing a distinctive cultural and historical tradition,

1 R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (S.C.C.), at para. 17; Droit de la famille - 091768, 2013 SCC 5, [2013] 1 S.C.R. 61 (S.C.C.) at para. 327 (dis- senting on result, but in the majority on the application of s. 15(1)). 126 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

often associated with race, nationality, or religion, by which the group identifies itself and others recognize it; belonging to or characteristic of such a group...”2 45 It is clear from this definition that the “ethnic origins” of the children L.L. and J.L. include Algonquin or, more broadly, Aboriginal ethnicity. Were the differential treatment under the CFSA based on their being Al- gonquin this would surely fall within the enumerated ground of “national or ethnic origin” within s. 15(1) of the Charter. 46 However, the distinction drawn by the CFSA definition of “Indian” is not based on ethnicity, it is based on status. Ethnicity or the related concept of ancestry does not determine whether a person has Indian status. As the Royal Commission on Aboriginal Peoples [RCAP] reported: Recognition as ‘Indian’ in Canadian law often had nothing to do with whether a person was actually of Indian ancestry.3 47 At pp. 305-306, the RCAP Report notes that the post-1985 rules about status (i.e. ss. 6(1)-(2) of the Indian Act) continue to treat individuals with the exact same Indian ancestry differently. 48 The Federal Court of Appeal in Daniels refers to this in the course of reversing the trial judge’s declaration that non-status Indians are “Indi- ans” within s. 91(24) for the reason that the declaration lacked practical utility. It stated at para. 77: [77] It is also inappropriate to grant a declaration clarifying the limits of who may be considered an Indian notwithstanding their exclusion from the Indian Act. The reasons for excluding people from Indian status are complex, far-ranging and often unrelated to one another. As the Judge noted at paragraph 115 of his reasons, one situation which created non-status Indians were problems recording names during the treaty process and fear of the treaty process itself. The result was that some names were not recorded and those individuals were not recognized as having status under the Indian Act. Other people were recognized as having status, but lost or gave up that status for various reasons, such as the many Indian women who lost status by marrying non-Aboriginal men.

2 Shorter Oxford English Dictionary, 5th ed, sub verbo “ethnic”. 3 Looking Forward, Looking Back. Vol.1. Report of the Royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply and Services, 1996. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 127

49 It is clear from these passages that at least some of the situations resulting in the loss of Indian status had nothing to do with ethnicity or ethnic origins. 50 Nor is the distinction drawn by the CFSA definitions of “native person” and “native community” rooted in ethnicity or ethnic origins. As is stated in the moving parties’ evidence the designation of “native communit[ies]” (and thus the designation of “native person[s]”) is based on (a) geographical location, (b) the manner of operation of the First Na- tions community and (c) band status under the Indian Act. Specifically, the evidence from the Ontario Ministry of Children and Youth Services was that: The intention of this section [s. 209] was to enable the Minister to designate First Nations communities that were: (a) located in the re- mote north on Crown lands; (b) operating in a manner similar to Bands, but (c) without status as Bands under the Indian Act. 51 None of these criteria, on which the distinction drawn by the CFSA definitions of “native person” and “native community” is based, engage the “national or ethnic origin[s]” of the community members caught by them. 52 Accordingly in my view, differential treatment of individuals with Aboriginal ancestry on the basis that they do not also have legal Indian status or membership in a “native community” is not differential treatment within the enumerated ground of “national or ethnic origin”. 53 However, I am of the view that the ground of distinction in this case, namely Aboriginal ancestry without Indian status or membership in a “native community” is an analogous ground. In Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203 (S.C.C.) [Corbiere], Justices McLachlin (as she then was) and Bastarache wrote at para. 13: [13] What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we 128 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegiti- mate and demeaning proxies for merit-based decision making. 54 In Corbiere, the Supreme Court identified “Aboriginality-residence”, i.e. whether an Aboriginal band member lives on- or off-reserve, as an analogous ground, noting that this “goes to a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship” (at para. 14). 55 Here, the “personal characteristic” at issue for the children is that they have Aboriginal (Algonquin) heritage, but do not have status under the Indian Act (and hence are not “Indians” under the CFSA). Now that the “non-status” state of affairs exists for these children — as a result of decisions made by or imposed upon their ancestors — it is immutable; they cannot change their position as Aboriginal people without status. Based on Corbiere, this appears adequate to identify Indian status, as it pertains to whether an Aboriginal individual is “status” or “non-status”, as an analogous ground. 56 In a similar vein, the children through decisions of their family and ancestors live in Ottawa and not in a northern First Nations community that operates like a “band” but without having “band status” under the Indian Act. There is no principled reason to distinguish between the choice of a band member to live on- or off-reserve and the choice of a non-status Indian to live as a member or not of a community that meets the Ministry’s criteria for designation as a native community and has been designated as such. Accordingly in my view distinctions made on this ground are analogous to those made on the analogous ground of “Aboriginality-residence” identified in Corbiere. 57 The next step of the s. 15(1) analysis is to consider whether the distinction at issue in fact creates a disadvantage. In Corbiere the Supreme Court concluded that the denial of the right to vote and to participate in band governance to band members not resident on the reserve created a disadvantage. Here, counsel for the moving parties submitted the CFSA Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 129

provisions applicable to “Indian[s]” and “native person[s]” have a significant beneficial impact on the children, families and communities to which they apply and therefore exclusion from those provisions creates the requisite disadvantage. 58 On the evidentiary record before me I can conclude there is a potential that the application of these provisions could have that beneficial impact. No evidence was led that tended to show outcomes for “Indian[s]” or “native child[ren]” placed in accordance with s. 57(5) were different or better than outcomes for children with Aboriginal heritage but no status or native community membership who were placed in accordance with s. 57(4). Without knowing how those provisions impact the children to whom they are applied, it is unclear whether the definitions excluding non-status Aboriginals from their application create a disadvantage and therefore are discriminatory under s. 15(1). 59 The moving parties rely on the Supreme Court of Canada’s sentencing decisions in R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.) [Gladue], and R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 (S.C.C.) [Ipeelee], which directed courts to take judicial notice of systemic and background factors affecting Aboriginal people. At para. 60 of Ipeelee the Supreme Court of Canada said: Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Cana- dian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attain- ment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indis- 130 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

pensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code. 60 I do not agree that the direction to take judicial notice of these systemic and background factors enables me to infer that a significant disadvantage is caused to those Aboriginals who do not come within the definitions of “Indian” or “native person” in the CFSA. 61 Further, it is difficult to apply the context referred to in the above passage from Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order an available disposition in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration. 62 This was noted by the Ontario Court of Appeal in M. (C.) v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612 (Ont. C.A.), at para. 7. The Court decided that Gladue principles did not affect the determination of whether an access order would or would not be appropriate. 63 It seems to me that a child protection court may benefit more were it able to take judicial notice of the systemic and background factors contributing to the over-representation of Aboriginal children in care and the experiences of native communities with child welfare authorities. Pardu J., as she then was, addressed this context in B. (S.) v. Children’s Aid Society of Algoma, [2002] O.J. No. 101 (Ont. S.C.J.). This was an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve. 64 The First Nation relied upon two articles, from which Justice Pardu quoted extensively: [40] The Mississauga First Nation relies on arguments advanced in two articles, “Best Interests” in Child Protection Proceedings: Impli- cations and Alternatives, Bernd Walter, Janine Alison Isenegger, Nicholas Bala (1995) 12 Can J. Fam. L. 367-439 (the Bala article) and Child Welfare Law, “Best Interests of the Child” Ideology, and First Nations, Marlee Kline, Osgoode Hall Law Journal, Vol 30, No. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 131

2. [1992] 375 (the Kline article). The First Nation concern cannot be appreciated without a review of the experiences of native communities with child welfare authorities. As noted by M. Kline (footnotes omitted), The child welfare system in Canada has had a devastating and tragic impact on First Nations. From the time provincial child welfare schemes were first extended to First Na- tions on reserves in the late 1950’s, large numbers of First Nations children have been removed from their natural parents, their extended families, and their communities. This has had destructive effects on individual children and their extended families. The continuous removal of children has also hindered the transmission of First Nation culture and traditions from elders to younger generations, thus threatening the very survival of First Nations, and several studies have demonstrated empirically that vastly disproportionate numbers of First Nations children end up in the custody of child welfare authorities...... [42] The First Nations refers to and relies upon the analysis of M. Kline and also upon the views expressed in the Bala article, at paragraphs 74, 76, 82 & 83,...... [82.] The preceding discussion reveals that a child’s being reared with, or at least having the exposure to his/her own cultural, linguistic, social and religious heritage is a critical factor in his/her identity formation, and hence is important to that child’s healthy development. It is also clear that culturally compatible placement is an important factor in helping with the formation of stable continuous relationships and hence avoiding the pain of repeated separation. Thus the maintenance, establishment or reestablishment of connections, between children and their heritage, are appropriate objectives in pursuit of a child’s best interests. Pursuit of these objectives presents major challenges for child welfare decision makers and service providers, especially for aboriginal children in the child welfare system. [83.] There are persuasive arguments why special consideration must be accorded the “indigenous factor” in child welfare legislation and practice. These include recognition of the length of time aboriginal children spend in 132 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

care, the high frequency of placement disruption for such children, the relative unlikelihood of them securing permanent homes through child welfare placements (culturally compatible or otherwise), and the ensuing psychological, social, developmental and identity problems that such your [sic] frequently encounter. Indeed this would seem to be consistent with the spirit and intent of much recent legislative and policy reform. Courts and child welfare service delivery staff need to seriously consider the capacity of coercive child welfare intervention to improve the circumstances and to truly achieve the best interests of aboriginal children. 65 Taking judicial notice of these systemic and background factors would provide the necessary context for understanding why the provincial legislature has included the special additional purposes and provisions applicable to “Indian” and “native” children. It would not displace the need for a factual foundation on which to assess the issue of whether the impact of the differential treatment caused by sections 3 and 209 of the CFSA is to create “disadvantage”. 66 In part this is on account of the comparative provisions of general applicability in the CFSA, namely ss. 37(3) and 57(4), which direct the court to consider a child’s cultural background and emotional and other ties to family and community, and, before making an order for society or Crown wardship, to consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family. Judicial notice of the historical context helps to understand why the legislature included the additional, special considerations for Indians and native children, but it does not to speak whether, having regard to the applicability of the general provisions, the non-applicability of the special provisions does create a disadvantage to other Aboriginal children. 67 The need for a factual foundation on which to assess disadvantage is also provided in the testimony of Nancy Keddy. She is an experienced supervisor in the CAS First Nations unit. She testified that it remains a real challenge to find placements in the First Nations community for children in care. Does this reality mean that the clear differences between the provisions specifically applicable to Indian and native children and the general provisions applicable to other Aboriginal children do not or may not actually create a disadvantage for the latter group? Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 133

68 This question cannot be answered on the evidentiary record before me. 69 Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 (S.C.C.), at p. 1580, stands for the principle that a court should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record I conclude the s. 15 claim should not succeed. This is not to say that this would be the result on a fuller evidentiary record, but merely that the issue, on this record, is too theoretical.

The Appropriate Remedy 70 Had I concluded that the provisions were unconstitutional I would not have read in the broader definition of “Indian” or “native child” as asked by the moving parties. They propose a definition that goes beyond what would be required to respond to the facts of this case. Their proposal is not based on consultation with Aboriginal groups. It would require the court to decide who or what entity should be served as representative of a non-status Indian’s native community. In my view, this is beyond the scope of what the court should undertake on a reading in remedy. 71 In Corbiere the Supreme Court stated, at para. 115: In my opinion, it would be inappropriate for this Court to “read in” to the Act voting rights for non-residents so that they would be voters for certain purposes but not others. This would involve considerable detailed changes to the legislative scheme. Designing such a detailed scheme, and choosing among various possible options, is not an appropriate role for the Court in this case (see M. v. H., supra, at para. 142, per Iacobucci J.). 72 Had I found the provisions invalid, I would have adopted the approach suggested by the CAS, namely to consider the case as if the children were “Indian[s]” or “native person[s]” and, therefore, I would have applied ss. 37(4) and 57(5). I would have struck down the definitions of “Indian” and “native person” and suspended the declaration of invalidity for a suitable period of time to enable the legislature to develop a constitutional alternative. 134 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

The 2015 Trial Pre-natal Assessment leads to the Proposal of a New Plan for L.L and J.L. 73 When the CAS learned that the mother was pregnant, a worker from its First Nations section, Alain Corriveau, was assigned to invite her to participate in a pre-natal assessment. Both the mother and the father, B.M., met with him voluntarily. Mr. Corriveau described both of them as open, positive and co-operative throughout his involvement which ended about a month after baby T. was born. Mr. Corriveau explained to them that he needed to consider the historical concerns in light of the present and future circumstances so that he could assess whether the new baby would be safely cared for by them. The historical concerns were the partner violence in the mother’s previous relationship, substance use by both parents (drugs and alcohol), their parenting skills and the prior criminal involvement of B.M. 74 Mr. Corriveau’s role was to make the parents aware of the CAS’s concerns and the essentials of a plan of care that would enable the CAS to agree to the newborn returning home with them from the hospital. A satisfactory plan was put in place, with the help of family and community supports. 75 After the baby arrived home, Mr. Corriveau began to assess the plan in action. Both parents signed the consents he requested for third-party information. Mr. Corriveau received and reviewed that information. In particular, Mr. Corriveau received details of B.M.’s youth and adult criminal records, and a letter from B.M.’s family physician. He discussed B.M.’s record and his mental health past and present with B.M. Mr. Cor- riveau also met with B.M.’s parents, because they were an important part of the safety plan for the baby. The paternal grandparents provided their consent to do an internal records check with respect to their prior con- tacts with the CAS. With knowledge of their past files, Mr. Corriveau was satisfied with their abilities to perform the supportive role undertaken by them. 76 At the end of February Mr. Corriveau was satisfied that the plan was working as contemplated and that the baby was properly cared for. The file was then transferred to Chantelle Carrier as the ongoing worker. Ms. Carrier is also part of the First Nations section. Her observations were that the mother and father were pleasant and co-operative, had almost daily support from family and community, and the baby was properly cared for. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 135

77 On March 12, 2015, the parents told Ms. Carrier they would like to present a plan to have L.L. and J.L. live with them. Various issues were discussed on that date and again later in March. For example, B.M. had not attended an important appointment in February at the Royal Ottawa Hospital. One topic for discussion at that appointment ought to have been his marijuana use. Ms. Carrier wanted him to reschedule and attend. Steps needed to be taken to de-clutter and child proof their apartment. Both parents were still smoking marijuana; drug testing was discussed. Ms. Carrier suggested the parents should set up a Circle of Care, prepare a plan and present it to her for consideration. 78 On April 28 the parents’ plan was finalized at the Circle of Care. As written the plan consisted of two pages of steps to be taken, things the parents would do, and the help they would be given and by whom. The plan did not include a timeline, but Ms. Carrier attended their home that same day and found it was ready for L.L. and J.L. to commence home visits. 79 Supervised home visits began in May. By the end of that month Ms. Carrier noted that the parents had taken some of the steps expected of them, but not all. Drug testing had not been started. They had not registered for the parenting program but had completed intakes for counselling. The parents were missing some appointments and needed help with scheduling. Whereas Ms. Carrier thought B.M. had stopped drinking, he explained he had meant he had stopped drinking hard alcohol, not beer. He added that he never had more than 3 or 4 beers, maximum. Some issues remained with respect to the apartment itself. For example, Ms. Carrier had noticed it was messy, things were on the floor, and there was ash in the bathroom even though the parents both said they did not smoke in the home. 80 Strengths and weaknesses were observed during the visits. The mother herself described the visits at this time as chaotic. She also acknowledged that B.M. was not used to children of this age and watched more than participated. B.M. described himself as completely over- whelmed at the outset of the home visits. He confirmed that he would sit and watch, rather than participate. Three matters described by Ms. Car- rier stand out as being of particular concern. 81 First, L.L. had been getting out of the apartment and running down the hall. The parents had been told to add a second lock to the door. By mid-June this had not been done. 136 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

82 Second, during a visit to the park, J.L. had run into the street. The driver had stopped and was out of the car before a parent arrived. Fortu- nately the child was not injured. 83 The third example concerned discipline. The mother was trying to give a time out to L.L. arising from an upset over a television restriction. B.M. interfered with her ability to do so, by talking continuously, until eventually the time out did not happen.

The First New Plan Falters 84 A Circle of Care was held in mid-June to discuss CAS concerns as to the viability of the proposed plan. It became clear that the CAS would not be supporting the plan, even though the baby T. was still doing well in his parents’ care. 85 As noted earlier, the reconsideration hearing had already been post- poned from April 21 to June 29. Realizing their initial plan to live on their own with all three children would not receive CAS support, the parents quickly proposed a new plan. They would move into the home of B.M.’s parents. It was a spacious four bedroom house, with a finished basement and a large yard. His mother was a paediatric nurse with 30 years’ experience. His father worked part-time hours, four days a week. Between these two grandparents, and given that both L.L. and J.L. would be in full-day school come September, the parents would be fully supervised while in a caregiving role to the children. The paternal grandparents would also be able to role model and provide hands-on parenting advice. Other supports were built into the plan from the maternal grandparents, other relatives, the Aboriginal community, and others. 86 With this new plan in the works, all parties agreed to a further adjournment of the trial, to September 21, 2015. Access moved into the paternal grandparents’ home almost immediately. The Circle of Care was reconvened and the formal plan was presented by July 8. The parents and T. moved into the home later in July. 87 Although the paternal grandparents had an important supportive role in the first plan, now that L.L and J.L. would be living in their home a Kin Assessment was required. The CAS took steps to get this underway.

Canada Day, 2015 88 The mother and B.M. made plans to spend part of Canada Day with T. at her parents’ home. The paternal grandmother was going to pick up T. there during the afternoon and keep him overnight. The mother and Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 137

B.M. planned to go downtown, watch the fireworks, spend the night at their condo, and pick up T. the next morning. 89 Unfortunately after T. left both parents became intoxicated. B.M. testified that they were both slightly intoxicated when they left to go downtown. I do not accept that testimony. They had enough to drink that they were arguing with each other before they left. The mother was pounding on a door or window with such vigour that her brother pulled her away before she broke it. The maternal grandfather finally ordered them out of the house. He agreed in hindsight it had not been a good idea to let them drink there at all. 90 B.M. testified the couple were arguing downtown and decided to go home after only 30 minutes. He said he became a “bit concerned” after they had been home for an hour or two. They had continued to argue “a bit more” at home. He called his mother and asked her to come get them. 91 The mother admitted she was extremely intoxicated that night. When the paternal grandmother arrived she had to rouse the mother to get her to the car. Someone else had also called the maternal grandmother. She arrived to see her daughter already in the car and described her as “pretty out of it.” 92 When the paternal grandmother reached her home, she sent the mother in first. Then she took her son to the basement couch to sleep, and sat up all night beside him in a chair. I concluded the paternal grandmother attempted to minimize this incident in her testimony. First, she described her son as “pretty sober” when she arrived at the condo. She did not explain why she separated the couple and she said she sat up all night beside her son in case he was going to be sick to his stomach. My finding is she took prudent steps to keep the couple apart because they had been arguing and because they were both still so intoxicated. 93 I was also told that the access visit scheduled for the next morning was cancelled because B.M.’s younger sister had a flu bug and T. was reacting to an inoculation. I was not persuaded that this was the reason for the cancellation. I find it is more likely the access was cancelled by the paternal grandmother because the parents were so intoxicated the night before. 94 The family took this event seriously and contacted their Circle of Care coordinator the next day. The mother decided not to drink any more, and testified she had not done so. B.M. decided to reduce his consumption, and there was no evidence that he had not done so. 138 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

95 Aside from the concerns with the excessive alcohol consumption and prolonged argument between the couple, it was also concerning that two important participants in the plan, the grandmothers, both failed to alert the CAS to these events in a timely way or at all, respectively. The maternal grandmother did inform the CAS but not until mid-August. The paternal grandmother did not report it to the CAS. She says she felt the family had dealt with it adequately and since the children were not present, she did not consider it reportable. 96 I disagree with the decisions by both of them in this regard. It is essential that anyone in a supervisory role, as both propose they should be, keeps the CAS up to date on events such as this.

Discussion of the Second Plan 97 The mother’s relationship with B.M. has been stable and they have lived together in the same condominium apartment, owned by his parents, for two years. Their son T. was born on January 28, 2015. The parents worked co-operatively with the CAS before and after his birth. The CAS approved their plan to care for T. at home and continues to do so. While the initial access with the boys at the condo was chaotic, the mother did reach out to the foster mother for advice on handling the children and to learn what their usual schedules were. 98 Now, they are living with his parents in their home and the plan is to continue to live there with all three children. There has been no contact with L.L. and J.L.’s father since January 2014. 99 The physical set up in the paternal grandparents’ home is suitable for the family. While four adults, a teen-ager and three children would be living in the house, there is enough room, given the four bedrooms and finished basement. The yard is large. The house is close to the neighbourhood school L.L. would attend. In fact the CAS had registered him in this school and he had started there in September. 100 By all accounts the access visits with L.L. and J.L. improved after the visits were moved to this home. One reason given was the additional space. But in addition B.M. takes advice and cues from his mother. He became more comfortable with the boys. 101 The CAS increased the duration and frequency of the children’s visits. After only a few supervised visits the CAS withdrew its supervision in favour of the paternal grandparents. By the end of August the children spent four full days there, returning to the foster home each night after dinner. To all outward appearances the CAS was well on the way to plac- Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 139

ing the children in the paternal grandparents’ home under a supervision order. 102 Both the mother and B.M. agree they still have much to learn in order to parent L.L. and J.L. Other witnesses who testified reinforced this. Comments were made to the effect that they are trying so hard, they are learning so much, but with the inference being they still have a ways to go. The paternal grandmother estimated that the mother and B.M. would likely need to live with her and her husband for 1.5 to 2 years before she would be comfortable with them living independently with all three children. She described the plan as not easy but viable. 103 I find that B.M.’s parenting skills have developed but still have a long way to go. He himself was quite candid in this regard. In testimony he said he knew he was in way over his head, with 3 boys under 5 and never having raised a child. 104 Additionally both parents continue to work on life skills. The paternal grandmother has been helping them with scheduling, planning and pre- paring for things ahead of time, making to-do lists, keeping a calendar, budgeting and meal planning. 105 The mother has taken significant steps since the 2013 trial. Then, she was still using hard drugs, alcohol and marijuana. She no longer uses hard drugs, and has recently discontinued alcohol and marijuana. Then, she still had some contact with the children’s father despite the risk of harm he posed to them. That is no longer the case. In 2013 she was still living in her parents’ home which was a source of conflict. Since then, the mother has had some counselling with her mother to improve their relationship. They both feel it has improved. 106 Whereas in 2013 the mother had difficulty exercising regular access to the children, now she has had excellent attendance for two years. She is doing well with T. and is kind and loving towards L.L. and J.L. She also engages herself in other aspects of their parenting. The mother participated in a psychological assessment of L.L. conducted over the summer of 2015. She provided information to the psychologist and met with him to hear his conclusions and recommendations for L.L. Before L.L. started school in September the mother met his teacher. She attended on his first day to show her support. She has also involved the children in the local Aboriginal community. 107 The mother agrees L.L. can be hard to handle. She has learned to intervene with him before his behaviour escalates, to administer time outs, and to redirect him. She is willing to take advice. The mother testi- 140 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

fied that having met with the psychologist she has a better understanding of L.L.’s needs; she said he needs someone to trust and build attachment with. 108 The plan has weaknesses. B.M.’s seventeen-year-old sister, C., lives at home. She is developmentally delayed. Five years ago, in 2010, B.M. touched her in an inappropriate sexual way on three occasions. C. told her mother, who immediately confronted her son. He admitted what he had done. The paternal grandmother then called the CAS and the police. She also required her son to move out that same day. She took her daughter to see her family physician and to a psychiatrist at the children’s hospital. She also obtained counselling for herself. 109 I find the paternal grandmother handled this disclosure appropriately. 110 The paternal grandmother testified that C. is fine with her brother being in the house at this point in time. She thinks her son is different now and that there would not be any reoccurrence. This is what B.M. thinks too. He pointed out that he is older, has a spouse, no longer takes hard drugs or uses hard alcohol, and has had his medications adjusted. Whereas he used to have grandiose ideas, depression and anxiety, and weird thoughts, he says all of this has gone away now because his medications were changed by a psychiatrist in December 2013. 111 Interestingly the maternal grandfather testified of B.M. that he takes some getting used to, and “talks some pretty weird things”. 112 B.M. says his family physician is now the one prescribing for him. According to B.M. he takes Seroquel, which he says is an anti-psychotic, and Concerta, which he says is for ADHD. 113 B.M. also sexually assaulted an eleven-year-old friend of his sister, in about 2009, when he was 17. He served time for this assault. He also physically assaulted a previous partner, pleaded guilty and was incarcerated for 30 days plus two years’ probation. When he was released he returned home, but left when the CAS found out he was there and required him to do so. His mother testified that this had been the plan all along; he was only to stay a few days while he found another place. 114 As part of his probation, B.M. took the New Directions program and completed it in October 2014. He is registered in a 3 week day-treatment program starting on October 19, which he describes as addressing with- drawal management. 115 Despite several witnesses referring to a sexual behaviours report prepared in 2011, no party tendered it. I heard that it contained a diagnosis Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 141

and recommendations, but I did not learn what they were. Nor was any current mental health report tendered with respect to B.M. No professional from the CAS interviewed C. and she was not a called as a witness at the trial. 116 Nor did the paternal grandfather testify. Other witnesses said he was supportive of the plan. Nonetheless I find it an important omission that the court did not hear from one of the two individuals who would be most closely charged with supervision of the parents were the court to accept their proposed plan. 117 Many other supports were adjuncts to this plan. The maternal grandparents would take the boys for a day or overnight visit during alternate weekends which they would enjoy and which would also provide the parents with a break. They would visit at least once a month and tele- phone once a week to check in on the family. Other family members agreed to be on call for emergencies, provide emotional support, check in on the family to see how they are doing, report any concerns to the CAS and so on and so forth. Members of the Aboriginal community also had agreed to specified supportive, counselling and educational responsibilities.

Aboriginal Ancestry and Culture 118 A key component of the plans put forward by the mother and her parents is to enable the children to maintain their Aboriginal culture and to maintain their participation in Aboriginal cultural activities. 119 As already noted, the maternal grandfather is Aboriginal, of Algon- quin descent. He said both his paternal grandmother and great grandmother were “pure Indian”. He was not raised with his heritage. He did involve his own children in some cultural events, but primarily before his daughter was born. He felt he owes it to the grandchildren to get back into the native way of life. 120 The maternal grandmother has no native ancestry but very much enjoys participating in cultural events with her grandchildren. 121 The Aboriginal community in Ottawa is extremely active and supportive of the mother, the children and the maternal grandparents. The court was very impressed by the willingness of the representatives who attended court to testify to support and assist in every possible way. 122 The mother connected with Minwaashin Lodge in August 2013. Minwaashin is an Aboriginal Women’s Support Centre located in Ot- 142 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

tawa. It provides a number of resources and supports in relation to domestic violence, addictions counselling, and parenting classes. Through Minwaashin the mother was able to return to school until T. was born. Its Sacred Child Program is extensive, ranging from facilitating access to providing children with art and play therapy. 123 The maternal grandparents and the mother exercised their access to L.L. and J.L. at Minwaashin Lodge starting in November 2013, until home visits started in May 2015. 124 The Wabano Centre provides culturally sensitive medical services, social services and supports for Aboriginal peoples. The mother received her pre-natal care at Wabano. 125 Makonsag is an Aboriginal head start pre-school. L.L. attended from February 2014 until September 2015. J.L. started in September 2014 and is still in attendance. Makonsag offers a variety of learning opportunities and cultural activities for children. Both L.L. and J.L. have learned drumming, smudging, and have participated in feasts and other cultural activities at the school. The children learn Cree. Teaching is done in the cultural tradition including learning from elders. Family members are also welcome for special cultural events. The mother and the maternal grandparents have attended many of these. 126 The Makonsag pre-school is also very involved in assisting its children to transition into public schools by working with kindergarten teaches to explain the child’s cultural background and to encourage the inclusion of an Aboriginal cultural component in class. This step was taken for L.L.; however, his school registration was subsequently changed. 127 The children’s teacher from Makonsag testified. She said that the school arranged special services for L.L. because he acted out in the classroom, lashed out at peers and did not follow rules. A behavioural specialist was brought in on an as-needed basis. The school provided a 1:1 educational assistant for him. 128 The teacher described both boys as proud of their culture. She described two children happily and proudly engaged in cultural activities including singing, drumming and smudging. 129 The Mother plans on continuing to participate in a Saturday playgroup at Wabano with the boys, and to take a parenting program there herself. She will be in occasional contact with the addictions program for women in recovery. She hopes to be able to place T. in the Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 143

Odawa Native Friendship Centre’s daycare. The maternal grandparents are also well connected in the Aboriginal community and will maintain these connections in future. 130 Staff at Minwaashin and Makonsag have had the opportunity to observe the parents and maternal grandparents during access visits at their locations. They described the visits as happy and positive, with no observed concerns. The children are described as being very happy to see their family and to appear bonded to them.

Kin Assessment 131 A kin worker met with the paternal grandparents at the end of August for the first interview. This was done because the assigned kin assessor, Ms. Scinto, was off on vacation. On her return Ms. Scinto scheduled a meeting with both paternal grandparents for September 10. The grandfather did not attend. The meeting took place with the paternal grandmother only and lasted for two hours. As result of this interview, Ms. Scinto concluded that she would not complete the assessment and that the CAS should not support the placement of L.L. and J.L. in the paternal grandparents’ home. 132 The concerns Ms. Scinto reported to the court were, first, that she had read the sexual behaviours report of B.M. She did not know if the concerns reported therein had been mitigated. Second, she had a dated mental health report, but no update. From her discussions with the paternal grandmother, Ms. Scinto concluded that the paternal grandmother had failed to see the risk her son posed in the past and had not protected her own daughter in the past. She did not think the grandmother saw that her son still posed a risk. Rather, in Ms. Scinto’s view, the paternal grandmother minimized his criminal and mental health issues. The paternal grandmother expressed that her son had changed since the sexual behaviours assessment was done and that, in her observations, his mental health was stable and not a problem. 133 Ms. Scinto was clearly not prepared to take the paternal grandmother’s word on these issues. I do not fault her for that. I agree that these important issues ought to have been canvassed in up-to-date reports by qualified practitioners. I am surprised that the CAS had not insisted on this earlier on in the process. 134 Yet, the only new information received during the kin assessment process was Ms. Scinto’s impressions formed from her interview with the paternal grandmother. Everything else was within the knowledge of 144 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

the CAS when it decided the mother and B.M. could safely care for T., when it decided the paternal grandparents were suitable occasional caregivers for T. and when it decided that access with L.L. and J.L. could take place in the paternal grandparents’ home without CAS supervision. Having concluded that T. was safe enough and that the paternal grandparents were protective enough for those responsibilities, it seems inconsistent to decide based on one interview that the assessment should not be completed and the placement should not be approved. 135 In these circumstances the actions the CAS then took seem precipi- tous, even taking into account the approaching trial date. On September 11 Ms. Scinto telephoned the paternal grandmother to advise that the assessment would not be completed. Ms. Scinto did invite the paternal grandparents to her office on September 14 to discuss her decision, but the fact remains, the decision had already been made. 136 A social worker contacted the mother to say the CAS would not be making the placement and that access would immediately revert back to the level provided for in the 2013 order, namely once weekly for the maternal grandparents only. This decision did not adequately reflect the interests of the children. It was not advisable to suddenly revert to two- hour weekly visits only with the maternal grandparents having regard to the development of the access up until that point in time. 137 I found Ms. Scinto’s testimony to be at odds with the manner in which the CAS had conducted the case up to that point in time. The CAS tried to explain this by pointing to the requirement to conduct a kin assessment once the plan changed to residency with the paternal grandparents. True, that requirement only arose at that point, but the CAS already knew the facts and had many opportunities to form opinions and to reach conclusions as to the paternal grandparents’ ability to be protective of the children. 138 I accept that the formal position of the CAS was that it could not approve the placement in the paternal grandparents’ home until a kin assessment had been conducted. I also accept that the CAS wanted to give this plan as much opportunity to succeed as time permitted prior to trial. But I also conclude that the CAS must have thought the plan had a realistic prospect of success given its conduct of the case from March 2015 forward to September 11. The CAS agreed to adjourn the trial in April and again in June, and took strong steps in the direction of placing the children with their mother in the paternal grandparents’ home. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 145

Aftermath of the Kin Assessment 139 Friday, September 11 was a very upsetting and confusing day for the family. They did not understand why the CAS had made the decisions it had made. The impression I formed was that an effort to try to understand deteriorated into finger-pointing and arguing between B.M. and his father. B.M. described it as a small argument or disagreement. His mother said it got a bit loud. Their testimony is not borne out by the fact that the mother removed baby T. from the room because the argument was so loud. She took him into the garage. The noise level must have been significant. 140 Additionally the upshot was that B.M. and the mother left the house until the following Tuesday. They needed a “breather”. Since then, up to trial, the couple has been back and forth between the condo and the paternal grandparents’ home. B.M. says his relationship with his father was a bit strained for a couple of days and is fine now. 141 I note again that the paternal grandfather did not testify. His views on this incident and its ongoing impact on his relationship with his son, if any, would have been of interest to the court. 142 L.L. and J.L. were upset by the sudden change in the access. The Makonsag School quickly offered its facility as a location where access could take place. The first visit there was only attended by the maternal grandparents as directed by the CAS. By September 24 the CAS had re- lented and the mother and B.M. were allowed to accompany them. The teacher at Makonsag described the September 24 visit as very difficult for J.L. He was sad and emotional when the visit ended. He cried, threw himself on the ground and refused to put on his shoes. Everyone including his brother was trying to console him. Finally the CAS social worker had to carry him out to the car. 143 The next day J.L. told his teacher he had not wanted his family to go.

Discussion of the Maternal Grandparents’ Plan 144 The maternal grandparents have always wanted to have L.L. and J.L. returned to their care. However they did not present a specific plan to achieve this until September 28. Accordingly I do not agree with their lawyer’s criticism of the CAS for not pursuing this with them prior to that time. They have had counsel throughout and were clearly supporting the other plans being put forward by their daughter. 146 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

145 The maternal grandparents did take steps to address the concerns expressed in the 2013 reasons. They have taken regular parenting courses at Minwaashin Lodge on a weekly basis. They both seem to enjoy attending these classes which cover a variety of topics. The grandmother did not return to work and has no plans to. The grandfather is still working part- time and says they can afford to do without his income, so that he would be able to retire if the boys were returned to them to reduce the times when either one of them would be on their own with both children. 146 Both grandparents report no significant changes in their health. 147 The grandparents have continued to demonstrate their love and devotion to their grandsons. They have been very participative in local Ab- original community activities with the children. There is no doubt that the children love them, are attached to them and benefit from their ongoing relationship with their grandparents. Since the 2013 trial the maternal grandparents have not missed a single one of their 3-hour weekly visits. 148 The maternal grandparents’ plan would also be supported by extended family members and the Aboriginal community. The parents would help by taking one child to school in the morning and by taking the children to appointments as needed. The plan proposes that the parents would also exercise alternate weekend access to L.L. and J.L. at the home of the paternal grandparents. 149 All of the evidence supports the conclusions that the maternal grandparents are able to look after the children during the visits and that they make a very positive and meaningful contribution to the children’s lives. Since the last trial they have engaged with the children in the First Na- tions community and I have no doubt they will continue to do so. 150 I did not observe an apparent improvement in the maternal grandparents’ physical abilities since the 2013 trial. I do take note of two events that were reminiscent of earlier problems. One was the decision to allow the parents to be drinking in their home on Canada Day, with the result that the parents were intoxicated and unruly to the point that the grandfather had to insist they leave the premises. A corollary to this incident was the decision not to call it in to the CAS until mid-August. 151 There is a new issue now as well, which is the way B.M. treats the maternal grandmother. He is rude and dismissive of her. The mother and B.M. denied this, but I prefer the testimony of the maternal grandparents themselves. The maternal grandmother said the relationship was very difficult at first. She thought it was getting better; however, it seemed to me Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 147

this was only due to her efforts. She said she tried to avoid confrontations with B.M. and makes an effort not to upset him. 152 For his part the maternal grandfather agreed that B.M. was not nice to his wife. He described one occasion when he said he could have hauled back and hit B.M. because of this, but decided to keep it in his mind and did not say anything. With this testimony in mind I was puzzled that he would choose to smoke the occasional joint with B.M. in the maternal grandparents’ backyard.

Best Interests and Permanency 153 Section 37(3) of the CFSA sets out a number of factors to be considered in assessing a child’s best interests: (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 148 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3). 154 Sections 57(3) and (4) are also applicable: (3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1). (4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4). 155 The importance of permanency to a child is reflected in section 70(1) (a) which provides that where a child is less than 6 years of age s/he shall not be in the care of a society for a period exceeding 12 months. That period may be extended for a maximum of six months if the court determines the extension is in the child’s best interests. 156 L.L. and J.L. have now been in care since February 2013, well over the permitted time period established by the CFSA. 157 The parents and maternal grandparents jointly submit that the children are better off with their family, to whom they are clearly attached, and with whom they can maintain and develop their Aboriginal cultural identity. They say the CAS plan is too vague, as it is simply for adoption in an as yet unknown family. Although the CAS promises to look for openness, there is no guarantee and, depending upon where an adoption placement is located, openness, even if agreed to, may in fact be very limited. In their joint submission, both family plans provide sufficient supports to meet the needs of the children and to satisfy the court that they would be well cared for. Their joint submission prioritizes the par- Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 149

ents’ plan in the home of the paternal grandparents and offers the maternal grandparents’ home as an acceptable alternative. 158 The CAS says that neither of the plans before the court has sufficient indicia of permanency to be considered as meeting the statutory objectives at this point in time. The CAS submits that the risk of breakdown is too high having regard to the consequences to the children of such a breakdown. The CAS believes that despite extending every opportunity to the mother and extended family to present a permanent plan for the care of L.L. and J.L. during the spring and summer of 2015, neither plan is in fact stable enough or permanent enough to meet the needs of the children. The CAS agrees to the importance of maintaining L.L. and J.L.’s Aboriginal culture and family ties, but submits this can be done through access orders. 159 I have considered all of the factors set out in the sections of the CFSA above. Despite my respect for the efforts of the mother, her partner and the extended family, I have reached the conclusion that the best interests of the children at present are supported by an order of Crown wardship. These children have been in limbo for too long to now embark upon a plan that will not, on a balance of probabilities, become permanent in short order. 160 The mother’s plan cannot be evaluated in the same way as if it had been made when L.L. and J.L. were two years younger and had only been in care for eight to nine months. In that context the outcome may have been very different. As it is, my conclusion is that the mother’s plan does not provide sufficient indicia of permanency for the children who have now been in care for thirty-four months. 161 In reaching this conclusion I rely on several gaps in the mother’s case. The paternal grandfather did not testify. Given the proposal is for the family to reside in his home with him in a supervisory role, that is a significant omission. The significance is underlined by the fact of the recent argument between him and his son which does show some fragility in the residential arrangement. As well, the paternal grandfather did not attend the September 10 meeting with the kin assessor. In these circumstances I am not prepared to simply take his spouse’s word as to his commitment to the plan. 162 C. did not testify, nor was any independent information put forward as to her acceptance of her brother’s residency in the home. She is a developmentally challenged 17-year-old said by her mother to be functioning at the level of a 14-year-old. She is unable to live independently. 150 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

The plan would have been stronger had the court had more knowledge of her understanding of it and of her ability and willingness to accommo- date her brother’s residence in the home on what might be quite a long- term basis. 163 The court did not receive up-to-date medical information with respect to B.M.’s mental health which would have enabled the court to decide whether there are residual concerns arising from his inappropriate sexual behaviours five years ago. I note that the CAS could have insisted upon this early on and I was surprised it had not done so. At the end of the day the proponent of the plan has to satisfy the court as to its merits, regard- less of the view the CAS may have taken. 164 The paternal grandmother has the skills and experience to provide good parenting instruction and role modeling to the mother and to her son. She has already done so on several occasions, especially with respect to T. From her evidence and that of the parents also, I concluded that the parenting instruction and skill acquisition needed for the parents to reach a level sufficient to care for all three children in a safe and successful way was a longer rather than shorter term process. 165 I did conclude that the paternal grandmother had minimized the events of Canada Day and night. I did not agree with her decision not to report this to the CAS. As well, I did not think she recognized the seri- ousness of the argument between B.M. and his father on September 11. In my view that event shows that under pressure there was fragility in the family plan. 166 The mother’s current plan is the second plan she has put forward since March 2015. The first plan faltered by mid-June. The conclusion reached then was that even under a supervision order and with extensive family and community supports, the mother and B.M. could not parent these two children in their own home. This was the position the CAS took and if the mother disagreed with that position, she could have challenged it in court during the trial dates that were set to commence on June 29. She did not do so. 167 This second plan is by its nature temporary. Although the paternal grandmother says the young family could remain in her house forever if need be, that is not realistic. She also said she thought it might take 1.5 to 2 years of living in her home with her assistance before she would be comfortable with the mother and B.M. moving out to live independently with all three children. Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 151

168 Substance use is still an issue. B.M. missed his appointment in Febru- ary for an update at the Royal Ottawa Hospital. At trial he was still wait- ing for counselling. He was also registered in an upcoming outpatient treatment program. Both parents said they had stopped and/or curtailed their consumption of alcohol and marijuana, but this was recent, unveri- fied by testing and untested by the passage of time. The Canada Day episode is not reassuring. Whether it will prove to be the catalyst to sustained change remains to be seen. 169 Timing may not be everything but it is undeniably important. A supervision placement that may be appropriate at an early stage in a case may not be appropriate at a much later date. 170 The Children’s Aid Society of Sudbury & Manitoulin (Districts) v. D. (D.) (2009), 79 R.F.L. (6th) 193 (Ont. S.C.J.), is a case where the children were entitled to be registered under s. 6(2) of the Indian Act. Ac- cordingly s. 57(5) of the CFSA did apply in their case. Justice Hennessy, of the Superior Court, sitting in appeal, stated at paras. 15 and 21: [15] The issue at trial was whether the goal of permanency planning espoused in s. 1 (2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA], which underlies the proposal for Crown wardship should be trumped by the goal of placing native children within their extended family as mandated by s. 57(5) of the CFSA...... [21] These children have been in care for over three years, long past the permissible time period prescribed by s. 70 of the CFSA. There is a prima facie urgency to give serious consideration to permanency planning while, at the same time, keeping in mind the requirement of s. 57(5) of the CFSA. 171 In Catholic Children’s Aid Society of Toronto v. C. (B.), 2004 ONCJ 27, [2004] 3 C.N.L.R. 51 (Ont. C.J.), the issue was whether to allow an adjournment for a further investigation of whether a child had Indian or native status. The seven-year-old child had already been in temporary care for 33 months. The court denied the adjournment and stated at paras. 21 and 86: [21] From that particular exploration emerges assurance that the approach to be taken to clause 47(2) (c) of the Act some 20 months into a court case may legitimately differ from the approach to be taken at the beginning of the case, and for a very simple reason: neither the society nor the court can ignore the impact of further delay on the child. 152 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

..... [86] To grant this adjournment request would be to accept a stance that it is justice to be deliberately blind and deaf to the efforts of the Child and Family Services Act to send a message that children cannot live meaningful lives in “potential” plans. This court cannot do that. What may be justice to a child at the beginning of a protection case is not synonymous with what justice requires for this child almost three years later. 172 There is potential in the mother’s plan. It may lead to permanency for the children but it does not provide permanency now, or in a foreseeably short period of time. I do not agree that the CAS presents too vague a plan to be capable of meeting the children’s best interests. The CAS plan is for adoption. It is not able to look for an adoption placement until the children are legally free to be adopted. It is true that some individuals foster with a view to adoption, but that does not mean that in other situations, where an adoption placement will mean a child will be moved from a foster home into an adoptive home, that the plan for adoption is too vague. 173 I have also not concluded that it is in the best interests of the children to be placed in the maternal grandparents’ home. I have set out earlier some reservations that I have with respect to this plan. Additionally I was not satisfied their plan was really intended as a final permanent placement for the children or whether it would become a stepping stone to a future status review application by the mother seeking placement of the children with her. It was not lost on the court that having successfully won their appeal, the maternal grandparents at all times took a back seat to their daughter’s plans. 174 Although the children are not Indian children as defined in the CFSA, I do wish to refer to a decision of the Ontario Court of Appeal holding that maintaining children’s native heritage and culture is one important factor but not the only factor in determining their best interests. Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 50 R.F.L. (7th) 272 (Ont. C.A.), was a case where sections 37(4) and 57(5) applied. The children were status Indians. The appellants submitted that in determining the best interests of an In- dian child status must be given more weight than the other factors or, in other words, “super-weighted”. The Court disagreed, stating at paras. 69 and 71: [69] The paramount purpose of the CFSA is to promote the best interests of the child. The plain wording of ss. 1 (1) and 1(2) make this Children’s Aid Society of Ottawa v. F. (K.) J. Mackinnon J. 153

clear. Subsection 1(1) provides that “[t]he paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.” Subsection 1(2) lists several “additional” purposes of the CFSA. These additional purposes include the recognition that services to Aboriginal children and families should be provided in a manner that recognizes their culture. However, all of the additional purposes of the CFSA are subject to the express proviso: “so long as they are consistent with the best interests, protection, and well being of children.” (Emphasis added)...... [71] The Act makes clear the Legislature’s intention that First Na- tions’ issues be seriously considered. However, all considerations, including First Nations’ issues, are subject to the ultimate issue: what is in the best interests of the child? Nothing displaces the best interests of the child and no section of the Act overrides the child’s best interests. 175 In my view an ongoing order for access between the children, their maternal grandparents and their mother will reasonably address the issue of preserving the children’s Aboriginal cultural background. I agree that the access-right holder should be the adults so that they are able to seek openness in the event of an adoption placement being made for L.L. and J.L. It was not disputed that the test to award access to a Crown ward had been met with respect to all three individuals. I order that the maternal grandparents shall have access once weekly and that the mother shall also be entitled to a weekly access visit to the children. The visits need not be supervised by the CAS provided they are held on the premises of Minwaashin Lodge, Makonsag School or in the presence of the paternal grandmother. 176 In conclusion, and for the reasons given, an order for Crown wardship with access as set out above shall issue for both children. Application granted. 154 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: K. (T.L.) v. Children’s Aid Society of Haldimand Norfolk] T.L.K., Appellant and Children’s Aid Society of Haldimand Norfolk, Respondent Linda Feldman on behalf of the child H.J.B., Appellant and Children’s Aid Society of Haldimand Norfolk and T.L.K., Respondents Ontario Superior Court of Justice Docket: 180/14, 01/15 2015 ONSC 5665 R.J. Harper J. Heard: June 18; September 11, 2015 Judgment: November 30, 2015 Family law –––– Children in need of protection — Application for permanent custody — Miscellaneous –––– Access between siblings and with mother — Mother had children in 2003, 2004, 2006, 2008, 2010 and 2011 — Children had been in care since 2010 and were found to be in need of protection due to physical and emotional abuse — Oldest child was returned to mother subject to supervision order, but was later removed from her care — Trial judge made youngest two children Crown wards without access — Trial judge made second, third and fourth children (“middle children”) Crown wards without access by mother or oldest child but with access between themselves — Mother, oldest child, and middle children appealed judgment denying access — Appeals dismissed — Trial judge erred in stating that mother had failed to demonstrate that access, rather than relationship, was beneficial and meaningful, and in failing to analyze relationship between oldest child and middle children — There was sufficient record to conduct analysis at this point — Relationship between oldest child and middle children was not meaningful and beneficial, so there was to be no access — Oldest child had suffered significant and long-term negative impact as result of abuse and had compromised ability to form relationships — Trial judge had sufficient evidence to support finding that access between mother and middle children would impair adoption, as she had long history of adversarial litigation in this matter — Section 59 of Child and Family Services Act required consideration of whether there was beneficial and meaningful relationship and whether access would impair adoption, and not whether openness order might impair adoption. K. (T.L.) v. CAS of Haldimand Norfolk 155

Cases considered by R.J. Harper J.: Carter v. Brooks (1990), 41 O.A.C. 389, 2 O.R. (3d) 321, 77 D.L.R. (4th) 45, 30 R.F.L. (3d) 53, 1990 CarswellOnt 317, [1990] O.J. No. 2182 (Ont. C.A.) — referred to Catholic Children’s Aid Society of Hamilton v. A. (M.) (2012), 2012 ONSC 267, 2012 CarswellOnt 548, [2012] O.J. No. 223 (Ont. S.C.J.) — followed Catholic Children’s Aid Society of Hamilton v. S. (L.) (2011), 2011 ONSC 5850, 2011 CarswellOnt 11097, [2011] O.J. No. 4512 (Ont. S.C.J.) — followed Catholic Children’s Aid Society of Toronto v. B. (S.S.) (2012), 2012 ONCJ 558, 2012 CarswellOnt 11336, [2012] O.J. No. 4160 (Ont. C.J.) — considered Children’s Aid Society of Brant v. B. (J.) (2013), 2013 ONSC 4059, 2013 Cars- wellOnt 8320 (Ont. S.C.J.) — followed Children’s Aid Society of Hamilton v. B. (V.) (2015), 2015 ONSC 4602, 2015 CarswellOnt 11022 (Ont. S.C.J.) — considered Children’s Aid Society of Niagara Region v. J. (M.) (2004), 2004 CarswellOnt 2800, 4 R.F.L. (6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634 (Ont. S.C.J.) — considered Children’s Aid Society of Toronto v. L. (T.) (2010), 2010 ONSC 1376, 2010 CarswellOnt 1343, [2010] O.J. No. 942 (Ont. S.C.J.) — considered Children’s Aid Society of Toronto v. R. (R.) (2006), 2006 CarswellOnt 6943, [2006] O.J. No. 4478 (Ont. S.C.J.) — referred to Children’s Aid Society of Toronto v. U. (E.) (2014), 2014 ONCJ 299, 2014 Cars- wellOnt 8346, 45 R.F.L. (7th) 413, [2014] O.J. No. 2939 (Ont. C.J.) — considered M. (L.) v. Children’s Aid Society of Simcoe (County) (2012), 2012 ONSC 6707, 2012 CarswellOnt 16414 (Ont. S.C.J.) — considered M. (S.), Re (2009), 2009 ONCJ 317, 2009 CarswellOnt 3994, 70 R.F.L. (6th) 421, [2009] O.J. No. 2907 (Ont. C.J.) — followed Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 37(2)(b) — considered s. 37(2)(g) — considered s. 54(4) — considered s. 58 — considered s. 58(1) — considered s. 59 — considered s. 59(1.1) [en. 2006, c. 5, s. 17(1)] — considered s. 59(2.1) [en. 2006, c. 5, s. 17(2)] — considered s. 59(3) — considered s. 59(4) — considered s. 103 — considered 156 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

s. 103(2) — considered s. 136(1) “openness order” — considered s. 141 — considered s. 141.1.1 [en. 2011, c. 12, s. 3] — considered s. 143 — considered s. 145 — considered s. 145.1 [en. 2006, c. 5, s. 38] — considered s. 145.1.1(1) [en. 2011, c. 12, s. 6] — considered s. 145.1.1(2) [en. 2011, c. 12, s. 6] — considered s. 145.1.1(3) [en. 2011, c. 12, s. 6] — considered s. 145.1.2 [en. 2011, c. 12, s. 6] — considered Courts of Justice Act, R.S.O. 1990, c. C.43 s. 134(1) — considered s. 134(1)(a) — considered

APPEALS by mother, oldest child, and next three children from judgment denying access by mother and oldest child to three other children who were Crown wards.

James Battin, for Appellant/Respondent, T.L.K. Birkin Culp, for Respondent, Children’s Aid Society Haldimand Norfolk Linda Feldman, for Appellant

R.J. Harper J.: Issues on this appeal 1 There are three appeals from the Order of the Honourable Justice Baker dated November 26, 2014. The appeals are as follows: a. The mother, T.L.K., appeals the Order for no access to her children. She seeks an order for access to the children, W.A.B., S.L.B. and H.L.B.; b. The Office of the Children’s Lawyer (“OCL”) initiated an appeal on behalf of the children, W.A.B., S.L.B. and H.L.B. appealing the Order of the trial judge and seeking an order for access to their mother, T.L.K., and their older brother, H.J.B.; and, c. The OCL initiated an appeal on behalf of the older child, H.J.B., denying H.J.B. access to his siblings, W.A.B., S.L.B. and H.L.B. K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 157

Background Background of the family 2 The trial before the Honourable Justice Baker (“trial judge”) was a Status Review Application regarding the following children: W.A.B. (born September 12, 2004), S.L.B. (born August 27, 2006), H.L.B. (born August 22, 2008), J.B. (born March 30, 2010) and A.L.B. (born May 13, 2011). The Society sought an order for Crown Wardship with no access for all five children. 3 The mother and the OCL, acting for the five children, opposed the Application and sought an order returning the children to the mother, or in the alternative, an order allowing the mother access to the children. 4 The father had previously withdrawn his answer. He was found in default and did not participate in any of the proceedings. 5 The child, H.J.B., born April 17, 2003, was added as a party during the course of the trial. He sought an order for access to his siblings. The OCL advanced his claim for access and is advancing his appeal of the trial judge’s decision not to grant him access to his siblings.

The litigation process 6 This has been a long and arduous proceeding. All six of the above children were the subject of a protection trial before the Honourable Jus- tice Edward between January and July 2013. The parties consented to an order finding all of the children in need of protection pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 37(2)(b) (risk of physical harm) and s. 37(2)(g) (risk of emotional harm). The trial before Edward J. dealt with the appropriate disposition. 7 On July 15, 2013, Justice Edward ordered H.J.B. returned to the care of his mother, T.L.K., subject to a supervision order. He also ordered the remaining children, W.A.B., S.L.B., H.L.B., J.B. and A.L.B., to be made Crown wards with no access. 8 Justice Edward’s decision was appealed with respect to all of the children, except H.J.B. On June 9, 2014, Justice Gordon allowed the appeal and directed a new trial on the issue of disposition. 9 The trial before Justice Baker took place over 8 days split between July and October 2014. During the recess period in September 2014, H.J.B. was removed from his mother’s care and is the subject of a separate proceeding. 158 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

10 Over the course of the trial before Justice Baker, all parties and the OCL entered into minutes of settlement that provided for access between H.J.B. and W.A.B., S.L.B. and H.L.B. This agreement was subject to the trial judge’s approval. The trial judge did not approve of the agreement. He ordered no access for either the mother or H.J.B. to the three siblings as above. The remaining two siblings were made Crown wards with no access and that order is not the subject of appeal. 11 With respect to the children, W.A.B., S.L.B. and H.L.B., the trial judge ordered access between these children in the discretion of the Soci- ety and in consultation with the children. 12 In the course of their submissions before me, the Society submitted that they were wrong to have agreed to access the trial judge later rejected. They took the position, on this appeal, that the tests for access set out in s. 59(1.1) of the CFSA had not been met. 13 On the first day of the hearing of this appeal, the mother withdrew her appeal of the Crown wardship order. She filed fresh evidence which essentially stated that she could now support adoption planning for the children and wanted access for that purpose. In response, the Society takes the position that this eleventh hour epiphany is not real given the mother’s history. They submit the mother takes this position only to remove one of the hurdles to access: that such access would impair adoption of the children. The Society pointed to the years of litigation with respect to this matter during which the mother contested the issues vigor- ously. In the course of the litigation, the mother told one of the Society workers that she would bring a status review every 6 months until the children reached an age that the Society had no ability to prevent their coming home to her. 14 I agree with the Society. The mother’s history is long and consistent with respect to her adversarial position over the years. I do not feel that her last minute change of heart is rooted in her reality. I find that she has changed her position to tactically remove a concern for her being an im- pediment to adoption.

The trial judges reasons 15 The trial judge had substantial evidence before her with respect to the physical and emotional abuse of the children, as well as the impact of that abuse on their functioning. 16 All six children in this family have been the subject of an upbringing that featured a neglectful home. The Society has been involved with this K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 159

family since early 2010. There were multiple and long standing concerns for the children. The children were abused physically by their father. They were also witnesses to domestic violence and subjects of maltreatment and emotional abuse. Numerous resources were given to the family in order for them to make an effort to ameliorate the concerns. There were few gains made by the parents. 17 In August 2010, the family was referred to the Child Advocacy and Assessment Program at McMaster University Hospital (“CAAP”). By August 2011, the Society felt the mother had not made sufficient gains and they brought a protection application. CAAP’s first report, completed in September 2011, made recommendations that the children should be returned to the mother’s care on a gradual and sequential basis. The father was not involved in this assessment as he was incarcerated at the time. 18 CAAP was of the view that both parents were responsible for the abu- sive environment for the children. Although the mother was not violent, she could not and did not protect the children from the violence that was directed by the father at the mother and the children. As a result of this violent background and as a result of their being subjected to maltreatment and a neglectful environment, according to the CAAP report, the children were all compromised in their development across multiple domains of their emotional, physical, and cognitive functioning. The report also stated that the children fit within the framework of complex trauma, and this is, typically, chronic and long lasting. 19 The children seemed to have different levels of negative impact. For example, H.J.B. was described by CAAP as having behaviours that were consistent with post-traumatic stress disorder. However, the consistent recommendation of CAAP was that the children were in need of responsible, predictable, consistent, stable and emotionally sensitive caregiving. 20 CAAP was given certain additional information by the Society after CAAP had expressed the view that there should be a gradual return of the children to the mother. The information consisted of an incident where the mother misrepresented to the Society about providing breast milk for her infant child. In addition, she told CAAP that she was not in any relationship and there were no immediate concerns for further exposure to domestic violence. The latter information was also not accurate. The Society had information that the mother was in a relationship. After this new information was given to CAAP, they changed their opinion and supported the children being made Crown wards. 160 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

21 With respect to the issue of access, the CAAP report that was before the trial judge stated: With regard to access between T.L.K and the children, access should only occur if it does not interfere with the children’s opportunity for permanency. Given their ages and developmental needs. A.L.B. and J.B. do not require an ongoing access relationship with T.L.K although H.L.B is older, she has been primarily parented by her current foster parent and this, likely views her current foster parent as her psychological parent. Although she may recognize and have an affec- tional relationship with T.L.K. and enjoy her access with her mother, her access visits are less important to her future functioning. H.J.B., W.A.B. and S.L.B may benefit from an access relationship with T.L.K. given their ages and developmental needs. However, T.L.K., attachment relationship with her children is compromised given the children’s exposure to maltreatment in (her) care. Thus access should only occur if T.L.K. is able to consistently attend for access, respond appropriately to the children’s needs and support ongoing care outside her home. 22 The CAAP Clinical Coordinator, Ann Marie Pietrantonio, testified at the trial. The trial judge pointed out, at para. 36 of the judgment, that Ms. Pietrantonio’s testimony revealed that the children experienced child maltreatment. This means the children had experienced neglect, emotional harm and exposure to domestic violence, which is itself a source of emotional harm to children. The team concluded the children had suffered neglect because of the type of physical environment the children had lived in, transiency as the family had moved many times, school ab- senteeism for H.J.B. and W.A.B., lack of attention to H.J.B.’s and W.A.B.’s speech and language issues, and exposure to domestic violence. There were also concerns that the children were exposed to the father’s sexual abuse of a minor. 23 Evidence at the trial detailed many of the significant challenges H.J.B. faced. His behaviours and mental health issues escalated. H.J.B. had experienced seven different placements over his time in care. They all broke down due to his behaviour. At the end of August 2013, H.J.B. was returned to his mother’s care under supervision of the Society. Ap- proximately 4 days after H.J.B. was returned to his mother, T.L.K.’s boyfriend moved in with them. The mother’s boyfriend moved out shortly after Christmas of that year due to H.J.B.’s poor behaviour. The boyfriend then moved back into the home with the mother and H.J.B. at the end of June 2014. When the trial resumed in October 2014, H.J.B. had been removed from the mother’s care and returned to foster care due to K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 161

the escalating poor behaviour of H.J.B. By the time the trial had resumed in October 2014, the boyfriend had also moved out of the home. 24 As stated earlier the parties agreed to a finding that all of the children were in need of protection, and the trial then focused on the disposition. The trial judge stated at para. 172 of her reasons: All five of these children have been in care for a period vastly in excess of the maximums set out in the legislation. It therefore follows that the only available dispositions are immediate placement with the mother with or without supervision or Crown wardship with or without access. 25 Then after her review of the law, as applied to her findings of fact, the trial judge ordered Crown wardship without access to the mother and without access between H.J.B. and his 5 siblings. But the trial judge ordered access between the three children, W.A.B., S.L.B. and H.L.B. 26 The issues in this appeal are whether the trial judge erred in (a) not granting access between H.J.B. and his 5 siblings, and (b) in not granting the mother access to W.A.B., S.L.B. and H.L.B.

Standard of review Appeal 27 An appeal is not a rehearing that takes place as though there were not already a decision on the merits of the case. The trial judge’s decision is entitled to due respect. The appellant must show that the judge erred in his or her appreciation of the evidence, in the inferences he or she drew from the evidence or in his or her application of the relevant legal considerations: Carter v. Brooks (1990), 2 O.R. (3d) 321 (Ont. C.A.), 1990 CanLII 2623, at para. 34. 28 Some appellate courts have referred to the Ontario Court of Justice as an akin to a specialized tribunal and therefore some deference should be given to the trial judge. The Ontario Court of Justice and a judge sitting in the Superior Court of Ontario, Family Court, have been given exclu- sive jurisdiction over protection proceedings under the CFSA: Children’s Aid Society of Toronto v. R. (R.) [2006 CarswellOnt 6943 (Ont. S.C.J.)] 2006 CanLII 37603, at para. 4. 162 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

29 I agree with Justice Milanetti in Children’s Aid Society of Brant v. B. (J.), 2013 ONSC 4059 (Ont. S.C.J.) (CanLII), where she outlined the legal standard, at paras. 24-27, as follows: Justice MacPherson, in Children’s Aid Society of Regional Munici- pality of Waterloo v. C.A.D., 2011 ONSC 2253 (CanLII), [2012] W.D.F.L. 1514 at paras. 64, 65 (S.C.J.) articulated the applicable standard of review on an appeal of this matter, on a pure question of law, and on an appellate review of the summary judgment motion, is one of correctness. (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 286 N.R. 1, 219 Sask.R. 1, 2002 SCC 33 (CanLII), [2002] 7 W.W.R. 1, 272 W.A.C. 1, 212 D.L.R. (4th) 577, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, [2002] S.C.J. No. 31, 2002 CarswellSask 178 (S.C.C.)). Where it is alleged that the Motions Judge made an error of fact, the standard of appellate review lies somewhere between “palpable and overriding error” and correctness. The cases on this standard are ana- lyzed by Justice Hambly in Children’s Aid Society of Waterloo Re- gion v. V.L. and A.C.P., 2006 CanLII 32610 (ON SC), 2006 CanLII 32610, 151 A.C.W.S. (3d) 453, [2007] W.D.F.L. 2684 [2006] O.J. No. 3785, 2006 CarswellOnt 5729 (Ont S.C.). In those cases cited, the court concluded that the standard is “less deferential than manifest error” but falls short of the standard of correctness, where the matter being determined is one based on written material only. It is clear from all the law provided that this is not meant to be a rehearing. I am not to merely substitute my own decision for that of the original motions judge. Moreover, I am to be particularly deferential when reviewing the decision of a Justice specialized in this area of the law as is Justice Martin. This latter factor requires little emphasis when I review her extensive and well-reasoned decision

Did the trial judge err in law relative to the test ordering access to Crown wards 30 The trial judge correctly set out the wording of s. 59(2.1) of the CFSA. At para. 174 of her reasons she stated the following: ... no access order shall be made unless the court is satisfied that: a. The relationship between the person and the child is beneficial and meaningful to the child; and, b. The ordered access will not impair the child’s future opportunities for adoption. K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 163

31 At para. 175 she stated the following: Where a child is made a Ward of the Crown, there is a presumption against access. The onus is on the person seeking access to demonstrate on a balance of probabilities that the criteria set out in section 59(2) are met. “Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant”. The person seeking access must prove that his or her relationship with the child brings a significant advantage to the child. 32 None of the parties questioned the accuracy of the trial judge’s above statement of the law. The OCL, on behalf of W.A.B, S.L.B. and H.L.B., however, point to the following statement by the trial judge and submit that she misdirected herself as to the application of the test set out in s. 59(2.1). At para. 176, the trial judge stated: It is not sufficient for parents to state that access was appropriate and no concerns had been identified. The parents must show that access would bring a significant positive advantage to the child. [Emphasis added.] 33 The OCL submits the trial judged focused on the “access” being beneficial and meaningful instead of the “relationship” between the child and the person seeking access. At para. 272, the trial judge stated: I have therefore concluded that the mother has not demonstrated that access would be beneficial and meaningful for any of the subject children. [Emphasis added.] 34 The OCL submits that the above misdirection of the trial judge amounts to an error in law. The OCL further submits that the error is significant because the trial judge does not conduct the proper analysis of whether the children have a beneficial and meaningful relationship with their mother or their brother H.J.B. It is submitted that the trial judge did not even consider the beneficial and meaningful nature of the relationships. Rather, her analysis focused on the speculative concerns she had with resuming access and a fear, not supported by any evidence, that access could destabilize the children and undermine their current placements.

Err in law 35 I agree that the trial judge was not correct in law when she stated in her reasons that the mother has not demonstrated that access, instead of the relationship, had to be beneficial and meaningful. 164 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

36 The issue becomes did her misstatement of the correct test for access to a Crown ward prevent her from doing a proper analysis of whether the relationship between the mother and H.J.B. and the subject three siblings is meaningful and beneficial. 37 The court must assess the following when deciding whether to grant a person access to a Crown ward: a. Whether the relationship is beneficial and meaningful; b. Whether access would not impair adoption; and, c. If the court makes that two part determination affirmatively, the court must then consider whether access is in the child’s best interest. 38 In this case, the trial judge did not articulate in her reasons an analysis of the relationships between H.J.B. and his siblings, W.A.B., S.L.B., and H.L.B. 39 Section 134 of the Courts of Justice Act, R.S.O. 1990, c. c.43, provides the following: 134.(1) Unless otherwise provided, a court to which an appeal is taken may, (a) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (b) order a new trial; (c) make any other order or decision that is considered just. 40 As I alluded to earlier, this matter has had a long and arduous history. The children have been in care since 2010. The matter has already gone through one trial that was appealed and sent back for another trial. This is the appeal of the second trial. It is in the best interest of these children that I exercise my jurisdiction pursuant to s. 134(a) of the Courts of Jus- tice Act and make any order or decision that ought to or could have been made by the court or tribunal appealed from. 41 I have reviewed the complete trial record, including the transcripts. I am of the view that there is a sufficient record to be able to conduct an analysis of the relationship between the child, H.J.B., and his siblings, W.A.B., S.L.B. and H.L.B., to determine the first part of the test in s. 59(2.1) of the CFSA. K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 165

Impact of the abuse on all of the subject children 42 The starting point must be the impact the abuse had on the children’s ability to form relationships, and particularly, what is the nature of their relationships with each other. As I stated in paragraphs 15 through 21 above, the impact of abuse and neglect on these children has been severe and will be long lasting. 43 All of the subject children have been in care since 2010. When they came into care, W.A.B. was 6 years old, S.L.B. was 4 years old and H.L.B. was 2 years old. H.J.B. was 9 years old when he was assessed by CAAP in 2010. According to the evidence of the Clinical Coordinator of CAAP, Anna Marie Pietrantonio, in the transcript of her evidence at trial, commencing at p. 85, line 22: A. ...And in particular, we felt that the children’s exposure fit the framework of what we would refer to as complex trauma. Q. Can you tell us what that means? A. Yes. So complex trauma is the repeated exposure of, to adverse events or maltreatment such as the types that I’ve described earlier, over a prolonged period of time. In particular when children are young, this is concerning and that also it occurs in the context of a child’s primary relationship. So those relationships that children are expected to trust and keep them safe are the actual people who are responsible for the trauma. And so it’s complex because rather than a single event, it is typically chronic. It’s typically long-lasting. And it results in a developmental, a negative development outcome and compromises children’s functioning. 44 At p. 86, line 10 of the same transcript, she went on to state: A. So all of the children had varying degrees of difficulties in terms of their emotional behavioural functioning. Of all, with the exception of J, and A of course, when we talk about and it’s probably easier if I talk about each children, each child. So (H.J.B.) in particular we felt was the most compromised out of all the children. And so when we look at (H.J.B.’s) functioning, he in terms of his emotional and behavioural functioning, he had behavioural challenges that were long- lasting. As early as 3 and a half years old, he was being identified by his parents as having some significant difficulties with sleep and depression which resulted in him, his being on medication. These behaviours continued up until the time of our assessment and there was concern on our part that the behaviours were consistent with what we would describe as 166 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

traumatic stress symptoms or disorder. And so those, those behaviours were things like sleep disturbance, difficulties around transitions, difficulties around new situations or with- drawal, and it really, those kinds of symptoms impacted all of his of the domains. So it impacted his relationships with the, a family context, both within his birth family as well as in his foster home placements result in in multiple placements. It resulted in compromised functioning and difficulties in peer relationships. And, and our, also we had concerns that with, with H.J.B. but all the children, that his sense of self and his self-perception was compromised which then affected his interpersonal relationships. So that is generally around H.J.B. 45 With that backdrop of all of the children having difficulties to varying degrees with peer and family relationships, since they came into care and have spent most of their lives in care since 2010. H.L.B had experienced abuse and neglect for the first 2 years of her life and once in care she was placed into four different foster homes. Attachment relationships are difficult for all of these children. Ms. Pietrantonio stated in the transcript of her evidence at trial, commencing at p. 97, line 19: A. ... A compromised attachment relationships also then compromises things like their, the child’s social functioning, their peer interactions because then they don’t have a good tem- plate for how to be with people and it places them at risk for their own interpersonal relationship challenges as adults and they’re more vulnerable for things like intimate partner violence as an adult. 46 This was the state of the children’s functioning with respect to relationships in 2010. The children were noted in the evidence to have made gains while in the care of stable nurturing placements. However, there was a serious lack of evidence relative to the nature of the relationship between H.J.B. and the siblings he seeks access to. 47 Despite being made a party and having his case advanced by the OCL, H.J.B. did not call any evidence. I do not draw any adverse inference from that. H.J.B. was only 11 years old at the time of the trial. Ms. Feldman submitted that she did not think it would have been in the child’s best interest to have him testify. I agree with Ms. Feldman. Given this child’s significant past trauma testifying would have had little probative value and may have added to his traumatic experiences. Ms. Feld- man stated that she felt it was sufficient to rely on the state of the evidence from all other witnesses who testified. However, after my review of that evidence, I do not see sufficient evidence on the balance of K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 167

probabilities to establish that the relationship between H.J.B. and the subject children is meaningful and beneficial, within the meaning of s. 59 of the CFSA. 48 The only evidence that is submitted relates to the fact that the children enjoyed visits and want visits with H.J.B. In my view the expression of a wish to have access is but one factor in determining if the relationship is meaningful and beneficial. 49 The OCL called Ms. Chapman to give testimony. Ms. Chapman was not qualified as an expert witness. She testified as a social worker who was engaged by the OCL as a social assist to Ms. Bingham, who was appointed the legal representative of the children, W.A.B., S.L.B. and H.L.B. 50 Ms. Chapman had a number of interviews with the children in the summer of 2014. She testified that the child, W.A.B., showed her pictures of her biological family. They were old pictures from what looked to be about 2006. At p. 788, line 21 of the trial transcript, Ms. Chapman stated: “He told us who the people were in the pictures. This seemed to be important.” At p. 789, line 20, she stated: “He always talks about really wanted to see his siblings, H.J.B. included.” The essence of his wishes over Ms. Chapman’s interviews was that he wanted to live with his mother and see all of his siblings. 51 On October 17, 2014, H.J.B. had a visit with his siblings. W.A.B. told Ms. Chapman that he was looking forward to the visits. H.J.B. brought a letter that talked about their mother having a boyfriend, J.B. W.A.B. thought that the individual, J.B., sounded like he was fun. W.A.B. said there was nothing he did not like about the visits with his siblings and wanted them to continue. 52 Ms. Chapman also spoke with S.L.B. and H.L.B. She described them as being very close to each other. S.L.B. did not remember much about living at home and did not remember anything about living with her dad. 53 Based on those interviews, Ms. Chapman testified that the children, W.A.B., S.L.B. and H.L.B., said to her consistently that there are three parts to their lives. There is the mom, there are the siblings, and there are the foster families. Consistently all three parts of their lives are important to them. Any one part taken away from them is seen as being a loss and detrimental to them. 54 I do not feel that Ms. Chapman was in a position to express the opinion noted above. She was not qualified as an expert. She did not do an 168 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

investigation or assessment. She listened to expressions of wishes of the children without considering the children’s ability to form meaningful and beneficial relationships given their past and given the opinions of the assessors. There was no evidence that demonstrated on a balance of probabilities that the children made sufficient gains in order to develop meaningful and beneficial relationships with their mother or their brother, H.J.B. There was sufficient evidence that the children, W.A.B., S.L.B. and H.L.B., did develop meaningful and beneficial relationships with their foster families and amongst themselves. Wishes alone do not equate to meaningful and beneficial relationships. 55 I find that the relationship between H.J.B. and the subject children is not beneficial. H.J.B. has significant and long term challenges. He was the most affected by the abuse he suffered. His behaviours continue to escalate and are unpredictable. His ability to form and hold relationships are the most compromised. I do not feel that there is a significant advantage to the subject children to preserve whatever relationship there might be. 56 Having found the relationship is not meaningful and beneficial; there should be no access between H.J.B. and W.A.B., S.L.B. and H.L.B. 57 If I am wrong in this regard the second part of the test must be considered: would access impair adoption? 58 In order to consider that issue, a substantial part of the argument before me was whether or not the amendments to the CFSA of 2011 amounted to what was submitted before me to be a “dawning of a new age” relative to the consideration of whether access would impair adoption. Below I provide an outline of the relevant CFSA provisions.

The legislative scheme after 2011 59 Access is dealt with in ss. 58 and 59 of the CFSA. 60 Section 58 reads: Access order 58. (1) The court may, in the child’s best interests, (a) when making an order under this Part; or (b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 169

court considers appropriate. R.S.O. 1990, c. C.11, s. 58 (1). 61 Section 59 reads: Access: Crown ward (2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption. 2006, c. 5, s. 17 (2). Termination of access: Crown ward (3) The court shall terminate an access order with respect to a Crown ward if, (a) the order is no longer in the best interests of the child; or (b) the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied. 1999, c. 2, s. 16; 2006, c. 5, s. 17 (3). Society may permit contact or communication (4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. 2006, c. 5, s. 17 (4). Note: Despite the proclamation of the Statutes of Ontario, 1999, chapter 2, section 16, section 59 of this Act, as it read before March 31, 2000, continues to apply with respect to any proceeding under Part III, including a status review proceeding, that was commenced before March 31, 2000. See: 1999, c. 2, ss. 37 (5), 38 62 In addition to dealing with issues of access there is a new concept of “contact” in s. 59(4). Section 59(4) reads: Society may permit contact or communication (4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. 2006, c. 5, s. 17 (4). 170 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

63 The openness concept is set out at s. 141.1.1: (1) Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part III (Child Protection). 2011, c. 12, s. 3. Openness (2) Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or openness agreement in respect of the child. 2011, c. 12, s. 3. 64 Section 143 reads: Access orders terminate 143. (1) When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under Part III (Child Protection) in respect of a Crown ward. 2011, c. 12, s. 4. No interference, etc., with child in placement (2) Where a child has been placed for adoption by a society or licensee and no adoption order has been made, no person shall, (a) interfere with the child; or (b) for the purpose of interfering with the child, visit or communicate with the child or with the person with whom the child has been placed. R.S.O. 1990, c. C.11, s. 143 (2). 65 Section 145 reads: No access order in effect Application for openness order 145.1 (1) If a child who is a Crown ward is the subject of a plan for adoption, and no access order is in effect under Part III, the society having care and custody of the child may apply to the court for an openness order in respect of the child at any time before an order for adoption of the child is made under section 146. 2006, c. 5, s. 38. Notice of application (2) A society making an application under this section shall give notice of the application to, (a) the child, except as otherwise provided under subsection 39 (4) or (5); (b) every person who will be permitted to communicate with or have a relationship with the child if the order is made; K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 171

(c) any person with whom the society has placed or plans to place the child for adoption; and (d) any society that will supervise or participate in the arrangement under the openness order. 2006, c. 5, s. 38. Openness order (3) The court may make an openness order under this section in respect of a child If the court is satisfied that, (a) the openness order is in the best interests of the child; (b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and (c) the following entities and persons have consented to the order: (i) the society, (ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made, (iii) the person with whom the society has placed or plans to place the child for adoption, and (iv) the child if he or she is 12 years of age or older. 2006, c. 5, s. 38. Termination of openness order if Crown wardship terminates (4) Any openness order made under this section in respect of a child terminates if the child ceases to be a Crown ward by reason of an order made under subsection 65.2 (1). 2006, c. 5, s. 38; 2011, c. 12, s. 5. Access order in effect Notice of intent to place for adoption 145.1.1 (1) This section applies where, 145.1.2 (a) a society intends to place a child who is a Crown ward for adoption; and (b) an order under Part III (Child Protection) has been made respecting a person’s access to the child or the child’s access to another person. 2011, c. 12, s. 6. Notice 172 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons: 1. The person who has been granted an access order. 2. The person with respect to whom an access order has been granted. 2011, c. 12, s. 6. Right to apply for openness order (3) The society shall include in the notice the following information: 1. Notice that the society intends to place the child for adoption. 2. Notice that the access order terminates upon placement for adoption. 3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received. 4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received. 2011, c. 12, s. 6. Access order in effect Application for openness order 145.1.2 (1) A person described in paragraph 1 of subsection 145.1.1 (2) may, within 30 days after notice is received, apply to the court for an openness order. 2011, c. 12, s. 6. Notice of application (2) A person making an application for an openness order under this section shall give notice of the application to, (a) the society having care and custody of the child; (b) the child, except as otherwise provided under subsection 39 (4) or (5); and (c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made. 2011, c. 12, s. 6. Condition on placement (3) A society shall not place a child for adoption before the time for applying for an openness order under subsection (1) has expired unless every person who is entitled to do so has made an application for an openness order under this section. 2011, c. 12, s. 6. K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 173

Information before placement (4) Where an application for an openness order under this section has been made, a society shall, before placing the child for adoption, advise the person with whom it plans to place the child of the following: 1. The fact that such an application has been made. 2. The relationship of the applicant to the child. 3. The details of the openness arrangement requested. 2011, c. 12, s. 6. Outcome of application (5) Where an application for an openness order under this section has been made, a society shall advise the person with whom the society has placed or plans to place the child for adoption or, after an adoption order is made, the adoptive parent of the outcome of the application. 2011, c. 12, s. 6. Openness order (6) The court may make an openness order under this section in respect of a child if it is satisfied that, (a) the openness order is in the best interests of the child; (b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and (c) the child has consented to the order, if he or she is 12 years of age or older. 2011, c. 12, s. 6. Same (7) In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order. 2011, c. 12, s. 6. Consent of society required (8) The court shall not, under this section, direct a society to supervise or participate in the arrangement under an openness order without the consent of the society. 2011, c. 12, s. 6. Termination of openness order if Crown wardship terminates (9) Any openness order made under this section in respect of a child terminates if the child ceases to be a Crown ward by reason of an order made under subsection 65.2 (1). 2011, c. 12, s. 6. Temporary orders 174 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

(10) The court may make such temporary order relating to openness under this section as the court considers to be in the child’s best interests. 2011, c. 12, s. 6.

The concepts of access, contact, openness 66 In Children’s Aid Society of Toronto v. L. (T.), 2010 ONSC 1376, [2010] O.J. No. 942 (Ont. S.C.J.), Justice Perkins stated at para. 30: Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child’s wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interest test of section 37(3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the wider best interests of children who cannot return to a parent’s care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child’s wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child’s special needs are so extreme that an adoption is not a realistic possibility. But this is far from this case, on the evidence. 67 The OCL argues for an access order for J.B. with a view to keeping open the possibility of him making an openness application when the Society moves forward to place him for adoption. Ms. S.S.B.’s lawyer supports this position, arguing further that J.B. may be unadoptable, and that his relationship with his mother should not be sacrificed in these circumstances. (As I have set out above, I am satisfied that J.B. is adoptable, subject to his consent being given.) Section 59(2.1) creates a presumption against access where a child is a Crown ward. As Justice Pazaratz observed in Catholic Children’s Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, [2011] O.J. No. 4512 (Ont. S.C.J.), at para. 411: “Section 59(2.1) has not been changed by the recent amendments.” [Em- phasis added.] 68 The two stage analysis of s. 59 remains. The court must first determine whether a relationship is beneficial and meaningful. The second stage is to determine whether or not access would impair adoption. The amendments to ss. 141, 143 and 145 create the concept of “openness”. However, s. 59 was not amended to require the court to consider the concept of openness when considering an access application under s. 59. The law with respect to access and the CFSA amendments of 2011 was also K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 175

summarized by Chappel J. in Catholic Children’s Aid Society of Hamilton v. A. (M.), 2012 ONSC 267 (CanLII), [2012] O.J. No. 223 (Ont. S.C.J.), at paras. 24-25: The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied. [Catholic Children’s Aid Society of Toronto v. M.(L.), 2011 ONCJ 146 (CanLII), [2011] O.J. No. 1361, 2011 CarswellOnt 2068 (Ont. C.J.)] With respect to the first branch of the test, the focus is on the importance of the relationship from the child’s perspective. Quinn, J. outlined a number of important principles relating to the test in Children’s Aid Society of Niagara Region v. J. (M), [2004 CanLII 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.J.)]. He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child. See also Children’s Aid Society of Niagara Region v. J.C., [2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.)]. Further, he held that the focus of the inquiry is the nature of the current relationship between the child and the party in question, and not on how that relationship may unfold in the future. Finally, he concluded that even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue. In the past, the focus of the analysis under the second branch of section 59(2.1) was whether the child was considered “adoptable”. If the child was adoptable, the party seeking access could not typically satisfy the test, since former 141.1(a) of the CFSA prevented a Society from placing a Crown Ward for adoption where an outstanding access order made under Part III of the CFSA was in effect. Bill 179, the Building Families and Supporting Youth to be Successful Act, 2011, [S.O. 2011, c. 12] repealed former 141.1(a) of the Act, with the result that Societies may now place Crown Wards for adoption even where there is an outstanding access order, provided that they give anyone who has been granted an access order thirty days notice of the plan to place the child for adoption. Bill 179 also amended section 143(1) of the CFSA to provide that access orders in respect of Crown Wards are automatically terminated upon the child being placed for adoption, and granted those who have an access order in relation to a Crown Ward the right to apply for an openness order that would continue after adoption. These amendments have given 176 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

parties seeking access to Crown Wards a greater scope of argument in advancing their case for access. The inquiry no longer ends if the child is found adoptable, since a Crown Ward with access can now be placed for adoption. The additional question that will now be raised is whether the possibility of an openness order after adoption will impair the child’s opportunities for being adopted. 69 Justice Murray of the OCJ reviewed some of the cases commenting on the impact of the 2011 amendments in Catholic Children’s Aid Society of Toronto v. B. (S.S.), 2012 ONCJ 558, [2012] O.J. No. 4160 (Ont. C.J.), she stated at paras. 170-171: In Children’s Aid Society of Toronto v. S.A., R.M. and S.R., 2012 ONCJ 42 (CanLII), Justice Geraldine Waldman stated that: “The recent amendments to the Act create new considerations when addressing the issue of access and new dynamics in the adoption process. These new considerations must be addressed when considering the test in subsection 59(2.1).” I agree with this view, and in Catholic Children’s Aid Society v. M.M. observed: “The amendments mean that a court does not always have to make the choice between ap- proving a plan for adoption for a Crown ward, and leaving the door open for contact between a child and his biological parents.” The amendments referred to allow a society place a child who is a Crown ward and the subject of an access order for adoption, following the procedure set out below. • The society must give notice of the intent of adoption placement to the person who has the right of access, and to the subject of the order. The person with the right of access may commence an openness application within 30 days. • The child may be placed for adoption after the 30 days has expired (or after all persons who have the right to apply for an openness order have done so). That placement terminates all access orders. 70 Justice Sherr in Children’s Aid Society of Toronto v. U. (E.), 2014 ONCJ 299, [2014] O.J. No. 2939 (Ont. C.J.), took a much more expansive view of the CFSA given the 2011 openness amendments. Commenc- ing at para. 224, Justice Sherr commented on a decision of Justice Quinn in Children’s Aid Society of Niagara Region v. J. (M.), [2004] O.J. No. 2872 (Ont. S.C.J.). Justice Sherr stated as follows: Justice Quinn wrote this decision before the openness amendments were incorporated into the Act in 2006 and in 2011. An access order will no longer preclude a child from being placed for adoption. If the society serves a Notice of Intent to place a child for adoption, the K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 177

access order will terminate and the person having the right of access may apply to the court for an openness order. For the openness amendments to be meaningful, the court should consider the future benefits of an openness order in assessing if the parent’s relationship with a child is beneficial and meaningful. This was the approach taken in Catholic Children’s Aid Society v. M.M[2012] O.J. No. 3240 ONCJ at paragraph 212 where Justice Murray wrote: In my view, amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family affects the analysis in both prongs of the s.59(2.1) test. In considering the beneficial and meaningful portion of the test, Jus- tice Murray found that maintaining a connection and knowing your roots is significant in this consideration. She indicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered. 71 With the greatest respect, I do not agree. Section 59 does not require the court to consider whether or not an openness order might impair adoption. It only requires the court to consider whether the relationship is beneficial and meaningful and whether an access order will impair adoption. Section 141 provides that a child may be placed for adoption even if there is an outstanding access order. It then provides a pathway for the access holder to seek an openness order within 30 days of being notified that the child is being placed for adoption. In my view this pathway creates what Justice Pazaratz was referring to when he commented, at para. 421, in Catholic Children’s Aid Society of Hamilton v. S. (L.), 2011 Cars- wellOnt 11097 (Ont. S.C.J.) that it “opens the door slightly.” However, any consideration of openness does not come into play until the child is going to be placed for adoption 72 Justice Chappel commented at para 73 of Children’s Aid Society of Hamilton v. B. (V.), 2015 ONSC 4602 (Ont. S.C.J.) (CanLII), In dealing with the considerations set out above, the court must be cautious not to engage in pure speculation regarding the impact of an access order and a possible openness application on the child’s prospects for adoption. Evidence specifically addressing the relevant considerations is required. With respect to the potential impact on the availability of adoptive applicants, simply assuming that access will 178 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

diminish the pool of applicants is highly problematic. As Murray, J. stated in Catholic Children’s Aid Society of Toronto v. M.M., Supra., there may in fact be many situations where the Society and/or prospective adoptive parents could consider some form of ongoing contact between the child and the parents to be beneficial in terms of adoptive prospects having regard for the unique circumstances of the case. 73 In my opinion, a court considering the test in s. 59 as to whether access might impair adoption cannot project into the future with respect to any of the considerations of the impact of an openness order. The court would not know any of the details of a possible openness order that might limit or expand the pool of potential adoptive parents. The court, at the time of access consideration, would not have any details of the type of arrangement that might satisfy some of the criteria it must consider in order to grant an openness order at some point in the future. 74 When the court is considering access pursuant to s. 59(2.1) it is not asked to determine if “access or openness would impair adoption”. A court should not interpose a concept of openness that might be the subject of a future consideration when determining whether to order access. I find the omission in the legislation of the inclusion of an analysis of openness at the time of considering access is significant. At the time of any access consideration, there is no evidence of whether or not a future openness order would impair adoption. 75 The mere fact that granting access might lead to an openness application and preserve that right cannot form part of the analysis unless the court has already determined the relationship between the person seeking access and the child is beneficial and meaningful. If that determination is made, the court must consider whether or not access will impair adoption. The court is not to consider whether the relationship is so beneficial and meaningful that access should be ordered in order to preserve a right to possibly apply for some form of openness order. At the time the access order is sought, there are far too many unknowns relative to a potential openness order and its impact on adoption. 76 I am also of the view that the 2011 amendments have not expanded the definition of “meaningful and beneficial”. I respectfully disagree that the mere fact of preserving contact or a connection rises to the level of being meaningful and beneficial. Contact preservation is specifically pre- served by the operation of s. 59(4). That section provides for contact where there is no order for access or openness. K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 179

77 In M. (L.) v. Children’s Aid Society of Simcoe (County), 2012 ONSC 6707 (Ont. S.C.J.) (CanLII), Eberhard J. dealt with the issue of access as it may relate to an openness order. She stated at para. 15 of this decision: Recognizing that case law suggests an openness order should only be considered after “road testing” the arrangement, L.M. seeks, if the Children’s Aid Society of Simcoe County does move toward adoption placement, to have demonstrated during a period of resumed access after trial, that she has a relationship with M. that is beneficial and meaningful. Then an openness plan could be “road-tested”. This trial is really only a preliminary step to lay the groundwork for an openness order if and when the Society finds a suitable adoptive home. 78 Neither openness nor access is defined in the CFSA. But one thing is clear: openness and access are not the same. It is only at a later point in time, when the Society moves toward an adoption placement, that the consideration of openness comes into play. It is at that time that the court must consider whether or not the relationship continues (my emphasis) to be beneficial and meaningful. 79 Other than the Society bringing an application for an openness order pursuant to s. 145 of the CFSA, only a person who has been granted access is entitled to notice of the intention to place for adoption and apply for openness. The child, or access recipient, is only entitled to get notice that the access holder is applying for an openness order. 80 An openness order is defined in s. 136 of the CFSA as: openness order means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and, (a) a birth parent, birth sibling or birth relative of the child, (b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child’s extended family or community, or (c) if the child is an Indian or native person, a member of the child’s band or native community who may not have had a significant relationship or emotional tie with the child in the past but will help the child recognize the importance of his or her Indian or native culture and preserve his or her heritage, traditions and cultural identity; (“ordonnance de communication”). 180 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

81 Neither statute nor case law defines access. Most cases use phrases that describe elements of access, such as communication, contact, and visits. 82 Contact is a concept that has been included in s. 54(4) of the CFSA. Contact comes into play when there is no access order or openness order: Society may permit contact or communication (4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. 2006, c. 5, s. 17 (4). 83 Section 54(4) seems to conflict with s. 103. Section 103 reads as follows: When child a Crown ward (2) A child in care who is a Crown ward is not entitled as of right to speak with, visit or receive visits from a member of his or her family, except under an order for access made under Part III or an openness order or openness agreement made under Part VII. 2006, c. 5, s. 32. 84 Katarynych J. of the Ontario Court of Justice, in M. (S.), Re, 2009 ONCJ 317 (Ont. C.J.) (CanLII), discusses general principles that are helpful in coming to grips with how these concepts fit and when they come into play. To address the second criteria that “the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child” she considers what it is in the relationship that is to be continued, recognizing that neither the “parenting” nor the legal relationship will continue as those are entrusted to the adoptive parents. Katarynych J. continues at para. 17: What then in the relationship is left? It is the child’s emotional tie to that significant parent. Even then, eyes must be wide open to what portion of that emotional tie can reasonably go forward into adoption. The child cannot be left straddling his “old” and the “new” life in a manner that disinclines him to root himself in his adoptive life. Is it an occasional contact that is the stuff of an openness order? That cannot be the intention. To keep “relationship” alive requires more than an occasional “contact”. As a matter of human experience, occasional contact for a child is not something that “continues” relationship in any meaningful sense of that concept. Contact too infrequent over too long a period of time between a child and his significant person is the stuff that withers “relationship”. That withering and fear K. (T.L.) v. CAS of Haldimand Norfolk R.J. Harper J. 181

of withering of relationship is an all too familiar reality in the work of both the Ontario Court of Justice and the Family Court. 85 Then Katarynych J. considers the conjunctive requirements of “beneficial and meaningful” as they define best interests in this context and notes, at para. 17: Even though a true measure of benefit or meaningfulness of a relationship to a child may require the unfolding of time, the adjudication cannot be rooted in an anticipation or eventuality. If the present benefit and present meaningfulness are not evident at the time of the hearing, there is no discretion to make an order that gives opportunity for future benefit or future meaningfulness to the child. 86 Specific to our circumstances, Katarynych J. predicts, at para. 18, how this assessment of whether a relationship is beneficial and meaningful may look: That silence on temporary orders at the front end may be deliberate. The children’s aid society retains all its rights and responsibilities in relation to the Crown ward throughout adoption probation. The road-testing discretion rests with the society. Under the amended Part III of the Act, the society is given discretion to permit contact or communication between any person and the Crown ward, if the society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward. See subsection 59(4) of the Act. The only bar to exercise of that discretion is an access order in effect for that Crown ward that meets the specific criteria for such orders under the amended law governing access to Crown wards. 87 Section 59 does not require a court to determine whether an openness order will be of benefit to a child. An openness order is not an access order. The time for consideration of an openness order is set out in s. 141.1.1(2). This section provides that where the Society is planning for adoption the Society shall consider the benefits of an openness order or agreement. As a result, I would not consider the preservation of a process that might lead to an openness order can be a consideration when determining access in this case. 88 I find the trial judge had sufficient evidence to support her finding that access between the mother and the children, W.A.B., S.L.B. and H.L.B., would impair adoption. The trial judge preferred the evidence of Ms. McMaster, the CAS adoption worker, over that of Mr. Micheal Blugerman. This is especially so given Mr. Blugerman’s admission at 182 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

page 890 of the transcript that he did not think the present test in the legislation is fair. I would not interfere with the trial judge’s finding. 89 Having regard to the above, I order there shall be Crown wardship with no access to the children, W.A.B., S.L.B. and H.L.B. Appeals dismissed. Kochar v. Kochar 183

[Indexed as: Kochar v. Kochar] Rahul Kochar, (Applicant) and Amita Kochar, (Respondent) Ontario Superior Court of Justice Docket: FC-12-1503 2015 ONSC 6650 D.R. Aston J. Heard: October 15-16, 2015 Judgment: November 13, 2015 Family law –––– Division of family property — Practice and procedure — Discovery — General principles –––– Parties were married for 6.5 years and had two children — Parties shared parenting of children equally — Husband was Vice President of Operations for successful family business, established by his father, which encompassed more than 30 companies — When wife learned that husband was going to start proceedings, she warned his parents that everything about companies would be disclosed and that they should fire and abandon husband — Two main issues were equalization of net family property and determination of husband’s income for purposes of support — Both parties brought motions for further production and disclosure — Motions granted in part — Wife’s apparent litigation strategy was concerning and not irrelevant to consideration of her requests for production and discovery — Valuation of group of companies and family trust was not relevant to wife’s claim for equalization of net family property — Nature of wife’s fishing expedition, and concomitant cost, was apparent from level of details she wanted her proposed expert to examine for each of companies that comprised group — Extent of information and documentation wife sought was beyond what was reasonable — Husband had no interest in any of companies that comprised group, had never been shareholder in any of them and was nothing more than salaried employee — Wife’s request for additional documentation and disclosure for family trust was also irrelevant to determination of net family property — Husband’s interest was merely that of discretionary beneficiary — There was no legal precedent for proposition that beneficiary of discretionary trust, without any power of appointment, had proprietary interest in trust for purposes of broad definition of property — It was legitimate to delve more deeply into financial assistance that husband received from his parents and group of companies but wife’s requests for documentation and information went too far — Probative value did not justify cost of that line of inquiry — Selective limited disclosure was ordered in manner that balanced probative value with cost and delay — Husband was to produce all corporate credit card statements for cards he used for period April 1, 184 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

2009 to April 1, 2011 and to produce credit card statements for wife’s corporate card for period of time she was employed by group — Wife was ordered to produce certain bank statements — Extensive questioning and disclosure of non- parties as requested by wife would cause unacceptable delay and undue expense. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Practice and procedure — Evidence — General principles –––– Parties were married for 6.5 years and had two children — Parties shared parenting of children equally — Husband was Vice President of Opera- tions for successful family business, established by his father, which encompassed more than 30 companies — When wife learned that husband was going to start proceedings, she warned his parents that everything about companies would be disclosed and that they should fire and abandon husband — Two main issues were equalization of net family property and determination of husband’s income for purposes of support — Both parties brought motions for further production and disclosure — Motions granted in part — Wife’s apparent litigation strategy was concerning and not irrelevant to consideration of her requests for production and discovery — Valuation of group of companies and family trust was not relevant to wife’s claim for equalization of net family property — Na- ture of wife’s fishing expedition, and concomitant cost, was apparent from level of details she wanted her proposed expert to examine for each of companies that comprised group — Extent of information and documentation wife sought was beyond what was reasonable — Husband had no interest in any of companies that comprised group, had never been shareholder in any of them and was nothing more than salaried employee — Wife’s request for additional documentation and disclosure for family trust was also irrelevant to determination of net family property — Husband’s interest was merely that of discretionary beneficiary — There was no legal precedent for proposition that beneficiary of discretionary trust, without any power of appointment, had proprietary interest in trust for purposes of broad definition of property — It was legitimate to delve more deeply into financial assistance that husband received from his parents and group of companies but wife’s requests for documentation and information went too far — Probative value did not justify cost of that line of inquiry — Selective limited disclosure was ordered in manner that balanced probative value with cost and delay — Husband was to produce all corporate credit card statements for cards he used for period April 1, 2009 to April 1, 2011 and to produce credit card statements for wife’s corporate card for period of time she was employed by group — Wife was ordered to produce certain bank statements — Extensive questioning and disclosure of non-parties as requested by wife would cause unacceptable delay and undue expense. Civil practice and procedure –––– Discovery — Discovery of documents — Scope of documentary discovery — Documents in possession of non- party — Miscellaneous –––– Parties were married for 6.5 years and had two Kochar v. Kochar 185 children — Parties shared parenting of children equally — Husband was Vice President of Operations for successful family business, established by his father, which encompassed more than 30 companies — When wife learned that husband was going to start proceedings, she warned his parents that everything about companies would be disclosed and that they should fire and abandon husband — Two main issues were equalization of net family property and determination of husband’s income for purposes of support — Both parties brought motions for further production and disclosure — Motions granted in part — Motion for discovery from non-parties was dismissed without prejudice to wife’s right to bring another similar motion should husband fail to provide production and disclosure ordered — Wife’s apparent litigation strategy was concerning and not irrelevant to consideration of her requests for production and discovery — Valu- ation of group of companies and family trust was not relevant to wife’s claim for equalization of net family property — Nature of wife’s fishing expedition, and concomitant cost, was apparent from level of details she wanted her proposed expert to examine for each of companies that comprised group — Extent of information and documentation wife sought was beyond what was reasonable — Selective limited disclosure was ordered in manner that balanced probative value with cost and delay — Extensive questioning and disclosure of non-parties as requested by wife would cause unacceptable delay and undue expense. Cases considered by D.R. Aston J.: Berta v. Berta (2014), 2014 ONSC 3919, 2014 CarswellOnt 12382, 122 O.R. (3d) 124, 50 R.F.L. (7th) 180 (Ont. S.C.J.) — followed Boyd v. Fields (2006), 2006 CarswellOnt 8675, [2006] O.J. No. 5762 (Ont. S.C.J.) — referred to Himel v. Greenberg (2010), 2010 ONSC 2325, 2010 CarswellOnt 8261, 93 R.F.L. (6th) 357, [2010] O.J. No. 4623 (Ont. S.C.J.) — referred to Ontario (Attorney General) v. Ballard Estate (1995), 129 D.L.R. (4th) 52, 44 C.P.C. (3d) 91, (sub nom. Ontario (Attorney General) v. Stavro) 86 O.A.C. 43, (sub nom. Ontario (Attorney General) v. Stavro) 26 O.R. (3d) 39, 1995 CarswellOnt 1332, [1995] O.J. No. 3136 (Ont. C.A.) — referred to Saunders v. Saunders (2015), 2015 ONSC 926, 2015 CarswellOnt 2209 (Ont. S.C.J.) — followed Whelan v. O’Connor (2006), 2006 CarswellOnt 2581, 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, [2006] O.T.C. 409 (Ont. S.C.J.) — followed Zafir v. Diamond (2008), 2008 CarswellOnt 2030, 53 R.F.L. (6th) 209 (Ont. S.C.J.) — followed Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 Pt. II — referred to 186 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Rules considered: Family Law Rules, O. Reg. 114/99 R. 2 — considered R. 20(5) — considered Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Generally — referred to

MOTIONS by husband and wife for further production and disclosure.

Carol A. Crawford, for Applicant Beverley Johnston, for Respondent Philip Augustine, for Non-Parties, Cuckoo Kochar, Alan Halpern and Rajiv Khare

D.R. Aston J.: Introduction and Background 1 Both sides seek further production and disclosure from the other. An ancillary issue is the respondent wife’s request to obtain evidence from non-parties under the provision of Family Law Rule 20(5). 2 Mr. Kochar is the Vice President of Operations for a successful family business, DCR/Phoenix Group of Companies (“Phoenix Group”), which encompasses more than 30 corporations, primarily involved in land development and residential real estate. The company was established by his father, Cuckoo Kochar, who is still the President, Chief Executive Officer and controlling mind of Phoenix Group. In her request for further production and disclosure, Ms. Kochar is not just looking for information from the applicant but also requests oral discovery of Cuckoo Kochar and two senior officers of Phoenix Group, Alan Halpren and Rajiv Khare. These three non-parties oppose her request for their discovery. Mr. Kochar also seeks further production and disclosure. I will address the details of what each side is asking for from the other after some comment on the broad issues and the general legal principles underlying motions of this kind. 3 The disposition of discovery and disclosure requests requires a preliminary identification of the triable issues in order to assess the relevance of the information or evidence sought. However, it is not enough that information or evidence is technically or remotely relevant to an issue. Other considerations such as proportionality, fairness, cost, delay and interference with the privacy interests of non-parties must also be taken into account. Twenty years ago the Court of Appeal made this Kochar v. Kochar D.R. Aston J. 187

often quoted observation in addressing a request for production and discovery from non-parties1 The discovery process must also be kept within reasonable bounds. Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment...unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy will just grow and grow. The effective and efficient resolution of civil law suits is not served if the discovery process takes on dimen- sions more akin to a public inquiry than a specific law suit. 4 One of the major reforms that followed the subsequent work of the Task Force on the Discovery Process in Ontario was an amendment to the Rules of Civil Procedure emphasizing the “proportionality principle” as an overarching and general operative element in those rules. The proportionality principle was already enshrined in the Family Law Rules by Rule 2. Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issue raised. Comprehensive or exhaustive oral examination or production of documents may make access to justice unnecessarily expensive or protracted. Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be “unfair” to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party’s case, especially in relation to the amount at stake: see Himel v. Greenberg, 2010 ONSC 2325 (Ont. S.C.J.) at paras. 27 and 30 - 31. 5 The disposition of these motions must temper full disclosure of relevant information with the proportionality principle. In Saunders v. Saun- ders, 2015 ONSC 926 (Ont. S.C.J.), Kiteley J. addressed motions very similar to those now before this court. I agree with, and adopt, her general comments in Saunders and in particular paragraphs 13 and 14 of that decision which read as follows: Fourth, disclosure is not a weapon and is not intended to overreach. As is clear in this case and too many others before the court, the

1 Ontario (Attorney General) v. Ballard Estate (1995), 26 O.R. (3d) 39 (Ont. C.A.) 188 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

process of disclosure has become an independent battle within the overall litigation campaign.2 As Perell J. held in Boyd v. Fields3: Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the ut- most disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial. I agree as well with the observation by Harper J. in Berta v. Berta4: The duty of all experts to the court to be neutral and objective in providing their evidence and opinions is extremely important. Being neutral and objective does not mean an expert cannot be critical and seek out relevant documents sufficient to perform their task. They must dil- igently review those documents and arrive at their considered opinion based on that thoughtful analysis. That does not mean that the expert starts out with the presumption that he or she will unearth every single document that in any way might tie into another document in order to conduct a “forensic type of review” in all cases. Experts must approach their task with thoroughness without having a complete disregard to the proportionality of the task the issues and the costs. 6 In this case the respondent’s apparent litigation strategy is concerning and not irrelevant to the consideration of her requests for production and discovery. In April 2012 when the respondent learned that her husband was about to start this court proceeding, she sent an email to the applicant’s parents. She advised them that “the court will order a company valuation, a forensic accountant audit and trust disclosure”. She went on to say that if the applicant took the matter to court “the bread and butter

2 Fuda v. Fuda, 2010 ONSC 5698 at para. 4 3 [2006] O.J. No. 5762 (Ont. S.C.J.) at para. 12 4 2014 ONSC 3919 (Ont. S.C.J.) at para. 53 Kochar v. Kochar D.R. Aston J. 189

of Miki and Zara, you and I and the lives of all the employees in the office will be gambled away” and that “the company will be exploited, and all cases are public knowledge. Everything is disclosed, and I mean everything”. In anticipation that Mr. Kochar would be starting the court proceeding on Wednesday, Ms. Kochar wrote to her in-laws “I think you should on Tuesday morning take away his car keys and car, which is company property, his cell phone, which is company property, his Amex, tell him he cannot step foot inside the office Tuesday onwards, he is fired due to this lack of judgment as a human being, he is a risk to the company, not worthy of being called your son right now...Totally abandon him”. She concluded the email with the words, “I urge you, please take this drastic step before Wednesday or all your hard work and future of the company will be sacrificed...This has to be done NOW or it will be too late”. 7 It is reasonable to infer that the expansive, intrusive, expensive and potentially embarrassing disclosure now sought by the respondent is designed to get her in-laws to influence their son in her favour. 8 I agree with J. Wilson J. in Zafir v. Diamond, 2008 CarswellOnt 2030 (Ont. S.C.J.) at para. 24: The court must be vigilant to potential tactics and abuse on both sides, including potential hiding of assets...but also the tactic of involving wealthy family members in litigation in an attempt to lever a settlement. 1 9 The parties married in the fall of 2004 and separated 6 /2 years later in the spring of 2011. At the time, Mr. Kochar was 32 years old and Ms. Kochar, 28. They have two children, Zara now seven years of age and Mikhil who will be six this December. The parties share parenting of the children approximately equally. Ms. Kochar remained in the matrimonial home for almost four years after the parties separated. It was sold earlier this year for approximately $400,000. In the year the parties separated, Mr. Kochar’s income, on his tax return, was $204,500. It is quite evident that his income for support purposes is somewhat higher than that. The critical question is how much more. 10 On the motion for interim support in this proceeding, Kershman J. imputed approximately $25,000 additional income to Mr. Kochar to reflect the value of his company vehicle, cell phone and other benefits. However, Ms. Kochar continues to maintain that Mr. Kochar’s income for support purposes is more than twice as much as his tax returns show. Her belief in that regard stems mainly from the lifestyle that the parties 190 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

enjoyed while they were together and which Mr. Kochar seems to have enjoyed since. A main purpose in her request for further discovery and production is to prove what she believes his true income to be. 11 The two main issues are equalization of net family property and the determination of Mr. Kochar’s income for the purposes of spousal support and child support.

Net Family Property 12 The respondent submits that a valuation of the Phoenix Group of Companies and the Kochar Family Trust is relevant to her claim for equalization of net family property. I disagree. 13 The nature of the respondent’s fishing expedition, and concomitant cost, is apparent from the level of detail she wants her proposed expert to examine for each of the 30 or more companies that comprise the Phoenix Group - articles of incorporation, all historical financial statements back to 2007, shareholder agreements, a description of management personnel (with job description and particulars of their employment history and remuneration), strategic business plans, labour and employment agreements, recent budgets, details of work in progress, construction progress reports, marketing strategies and salaries and benefits of other persons holding corporate titles similar to Rahul Kochar. See Exhibits A and B to Mr. Clarke’s affidavit of February 11, 2015. The extent of the information and documentation he asks for is astoundingly beyond what is reasonable. 14 Moreover, the applicant husband has no interest in any of the companies that comprise the Phoenix Group. He has never been a shareholder of any of them. There is some evidence he is being groomed to take over the businesses someday but on the valuation date, and even today, he has no ownership interest whatsoever. He is a salaried employee, nothing more. 15 The respondent’s request for additional documentation and disclosure for the Kochar Family Trust is also irrelevant to the determination of net family property and too far reaching. 16 The Kochar Family Trust was wound up on May 19, 2012, twenty- one years after the trust was created, as required by the terms of the trust. Its only asset, one common share of 871442 Ontario Inc., was distributed to Madhu Kochar, Mr. Kochar’s mother. Kochar v. Kochar D.R. Aston J. 191

17 The Kochar Family Trust has never held any asset other than one common share of this numbered company. However, Cuckoo Kochar owns shares of 871442 Ontario Inc. which give him voting control over both the numbered company and Phoenix Group. During its entire existence, no dividends were ever paid to the Kochar Family Trust, nor was any income ever earned by or distributed from that Trust. More specifically, the applicant never received any benefit from the Kochar Family Trust. The Trust was essentially dormant from its inception in 1991 until it was wound up in 2012. 18 Mr. Polowin, one of the trustees, has deposed clearly and unambigu- ously that the trustees had decided to wind up the Trust and distribute its only asset to Madhu Kochar before the parties’ separation on March 11, 2011. It is significant that the decision to wind up the Kochar Family Trust, and to transfer its only asset to Mr. Kochar’s mother, was made before valuation date. This is not a case of using hindsight. The actual winding up 14 months post valuation date was simply the implementa- tion of a decision already made. Expressed another way, the winding up of the Trust without any distribution to the applicant was foreseeable on valuation date. 19 This evidence comes from one of the three trustees and is based on personal firsthand knowledge. It is unambiguous and dispositive of the issue of whether the husband’s net family property includes anything of value on the valuation date respecting this trust. 20 With respect to the Kochar Family Trust, the husband’s interest is merely that of a discretionary beneficiary. The first observation I would make about his interest in the trust is that he is not even a contingent beneficiary. There is no legal precedent for the proposition that the beneficiary of a discretionary trust, without any power of appointment, has a proprietary interest in the trust for the purposes of the broad definition of property in Part II of the Family Law Act. Mr. Kochar’s “interest” is akin to the expectation of an inheritance, which has consistently been found not to form part of a spouse’s net family property. However, even if he technically has an “interest in property”, it is clear from the evidence in this case that the value to the applicant husband is nil. 21 The value of the 2013 Kochar Family Trust, first established two years after the parties separated, and any further explanation regarding its particulars, is unnecessary and irrelevant. 22 The respondent’s requests for information and documentation to enable her proposed expert to value the Phoenix Group or either Kochar 192 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Family Trust for the purpose of determining net family property are dismissed.

Determination of Applicant’s income 23 The respondent’s expert witness, Mr. Clarke, deposes that detailed information and documentation on the value of the Phoenix Group of Companies is “necessary” for his determination of the applicant’s income. In his affidavit of February 11, 2015 (Tab 3, Volume 8 Continuing Record) Mr. Clarke sets out in detail an enormously long list of documents and information that he purports to need, much of it for the valuation of Phoenix Group and the Kochar Family Trust, but also significant and extensive information and documentation that he says is relevant to the determination of Mr. Kochar’s income for support purposes. I am not convinced that the information is as critical as Mr. Clarke makes it out to be. 24 Before the parties separated, the husband’s salary with Phoenix Group was $127,931 in 2009 and $166,526 in 2010. From the time of the separation in 2011 to the present, his salary has been $204,500.00 plus benefits and perks. The suggestion that he may be underpaid in relation to the magnitude of the group of companies he works for pre-supposes that he has a choice; that he could either earn more elsewhere or that he could demand a bigger salary from his father, who ultimately determines his total remuneration. 25 It seems obvious on the evidence that the applicant would be a fool to look for alternative employment elsewhere given his long term prospects with the Phoenix Group. The applicant admits that he has not asked for a raise since the separation in 2011. However, in addition to his salary and benefits, he has been subsidized in his living expenses to a significant degree by both his parents and the Phoenix Group. It is legitimate to delve into that subsidy. 26 Mr. Kochar drives a Porsche Cayenne which Phoenix Group leases for $3700 per month. Phoenix Group also pays gas and servicing costs, maintenance, repair and vehicle insurance. The business also pays for Mr. Kochar’s cell phone and allows him access to the corporate suite at Canadian Tire place. Mr. Kochar admits that the personal benefit portion derived from these company paid expenses ought to be imputed to him for support purposes. The parties disagree on the quantification of the personal benefits, but the particular costs have been provided. Kochar v. Kochar D.R. Aston J. 193

27 In addition, Mr. Kochar has a corporate American Express card which he routinely presents to Phoenix Group for payment, in whole or in part. A Phoenix Group employee decides which items are properly business expenses. It reimburses Mr. Kochar for business expenses. To the extent that those expenses are a business expense, not a personal benefit, no income would be imputed to Mr. Kochar. However, it seems that many items not characterized as business expenses are paid directly or indirectly by his father, Cuckoo Kochar. In a similar vein, there seems to be a history of other receipts, other than just those charged to the corporate American Express card, which are treated in similar fashion, including meals and entertainment. During the marriage, Ms. Kochar says she was told that all expenses for the former matrimonial home like bedding, towels, lamps, furniture, groceries, alcohol for personal consumption, garden supplies and the like were expensed through Phoenix Group. She says she was directed to keep receipts for groceries and furniture and to submit them to the bookkeeper for the Phoenix Group for reimbursement. Mr. Kochar refutes that evidence. However, a review of the transcript of Mr. Kochar’s questioning demonstrates that his personal spending and his corporate spending are intertwined and that he effectively receives reimbursement, directly or indirectly, for many personal expenses. There is evidence that Mr. Kochar’s parents pay personal expenses directly for his benefit, such as private school costs for the children. 28 In Whelan v. O’Connor (2006), 28 R.F.L. (6th) 433 (Ont. S.C.J.) at para. 21, Mackinnon J. distilled the case law on the question of whether, and when, gifts received from another family member ought to be considered as income for support purposes. At this juncture, the only issue is whether a trial judge might impute income to the applicant (or to the respondent for that matter) having regard to the legal test in Whelan. It is germane to the determination of the husband’s income in this case that he be required to reveal particulars of all “gifts” to him from his parents or from the corporations his father controls in the form of personal expenses paid for by Cuckoo Kochar or a Phoenix Group company. 29 The respondent “suspects” that the applicant’s personal legal fees in this case have been paid by Phoenix Group and expensed as business expenses. Mr. Kochar has deposed that his father paid those legal fees, as a loan to him. The wife’s request for proof of who paid the husband’s legal fees, and whether they were expensed by Phoenix Group, is not relevant if paid as a loan. Moreover, her request seems to be based more on the respondent’s litigation strategy, referred to earlier, rather than any 194 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

income attribution claim. This particular request crosses a line, and is refused. 30 It is legitimate to enquire more deeply into the financial assistance Mr. Kochar has received from his parents and the Phoenix Group, but the wife’s request for information and documentation goes too far. The probative value of a full blown valuation of the Phoenix Group of companies or the Kochar Family Trust does not justify the cost of that line of enquiry for the inferential impact it might lend to the assessment of Mr. Kochar’s income for support purposes. In the disposition to follow, selective limited disclosure will be ordered in a manner that balances the probative value with the cost and delay that would occur as a consequence of the wide open expansive disclosure Mr. Clarke would need in a perfect world.

Disposition Applicant’s Undertakings 31 All the applicant’s undertakings have been fulfilled.

Applicant’s Objections and Refusals 32 With respect to all credit card charges related to the Revelstoke residence the applicant is to identify which charges are personal to him and which are personal to his father and why. 33 The respondent seeks copies of the applicant’s corporate credit card statements for the period January 1, 2009 forward (transcript page 66 questions 4 to 8). The applicant has subsequently provided those statements for the period January 2010 to March 2014. The only dispute outstanding is whether the applicant ought to provide the corporate credit card statements for the calendar year 2009. Though the parties did not separate until the Spring of 2011, I find that the probative value of the 2009 statements may justify the cost of ordering this additional production from April 1, 2009 forward. 34 The applicant is to provide third-party confirmation of the account numbers of all credit cards for which he has submitted statements to Phoenix Group for reimbursement or payment for the period April 1, 2009 to the present, with particulars of the dates covered by each account. 35 If he has not already done so, the applicant is to produce all corporate credit card statements for cards he used for the period April 1, 2009 to Kochar v. Kochar D.R. Aston J. 195

April 1, 2011, together with particulars of which items he paid personally, in whole or in part, without reimbursement. 36 The applicant was asked to produce credit card statements for the wife’s corporate Amex card during the period of time she was employed by Phoenix Group. The applicant takes the position that these are irrelevant to the determination of Mr. Kochar’s income for support purposes. I disagree. They may shed some light on lifestyle and finances before the date of separation that could assist the trial judge. The information is to be provided. 37 In a similar vein, the applicant was asked to produce copies of the respondent’s corporate cell phone account for the period she had a cell phone paid for by Phoenix Group. It is my view that it is sufficient for a trial judge to know that she had such a cell phone provided to her without going to the actual invoices. This request is refused. 38 The applicant was asked to provide copies of the tax returns for the Kochar Family Trust for the years 2007 to 2012. Though the applicant has previously advised that no returns were filed except for 2012 (the year the Trust was wound up), the applicant does not object to providing a copy of that 2012 return. On consent, so ordered. 39 I have reviewed all the other objections and refusals by the applicant from his oral examinations. I find that the additional information sought by the respondent is either already answered irrelevant to the determination of Mr. Kochar’s income for support purposes or that its probative value is negligible in relation to the job it creates or the cost involved. The remaining advisements and refusals listed by the respondent need not be answered or produced by the applicant for the reasons already given earlier in these reasons with respect to relevancy and proportionality. It would not be unfair to the respondent to proceed with the case without the information and the applicant’s objections to these remaining questions are sustained.

Further disclosure by Applicant 40 The respondent has requested that her expert Mr. Clarke be able to discuss documents listed in his letters with the external and internal accountants of Phoenix Group. This request is too open-ended. These motions will have determined what information and documentation is to be made available to Mr. Clarke. If he has specific follow-up questions that can only be answered by an internal or external accountant, those questions may be put to the applicant by way of written interrogatory, but the 196 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

request for him to have open-ended access to unnamed non-parties is refused. 41 Both sides have agreed to produce their credit card and bank statements on an ongoing basis until trial. Those documents are ordered to be produced quarterly, starting November 1, 2015 by email to the solicitor for the opposite party. 42 The applicant submits his card statements to Phoenix Group and is reimbursed for those that are deemed to be business expenses. There is some evidence that non-business items are paid for by Phoenix Group but charged to Cuckoo Kochar’s shareholder account, relieving the applicant from payment for those particular personal expenses. On oral questioning the applicant undertook to advise of the particulars of business expenses reimbursed to him and he has fulfilled that undertaking to date. He is to continue to provide that information and documentation quarterly by email. He is also to provide particulars of all expenses incurred by him and charged to his father’s shareholder account from April 2009 to the present, and on an ongoing basis.

Respondent’s undertakings 43 Amita Kochar is to verify and advise within 30 days whether her 2012 US tax return has been completed, or when it will be. She is to provide a copy as soon as possible. 44 The respondent was asked to produce copies of four particular bank statements and has answered that the statements are not available to her. There is no apparent reason why these statements should be unavailable to her and it is insufficient to pass off the costs of obtaining the statements to the applicant by simply providing a direction. The respondent is ordered to produce the following: a) her statements for BMO account number [456#omitted] from Jan- uary 1, 2010 to the date the account was closed or proof from the bank such statements are not available; b) statements for BMO account number [194#omitted] from January 1, 2010 to the date the account was closed or proof from the bank such statements are not available; c) statements for Habib American Bank account number [033#omitted] for the period January 1, 2010 to March 22, 2010; and Kochar v. Kochar D.R. Aston J. 197

d) statements for Habib American Bank account number [701#omitted] from January 1, 2010 to the present. 45 At transcript page 43, question 231 of her oral questioning, Ms. Kochar undertook to make enquiries and advise where a $20,000 deposit to her Habib American Bank account came from in July 2010. Her answer that the funds came from her Harris private bank account is refuted by the statements subsequently produced for her Harris private bank accounts. This undertaking therefore remains unfulfilled and Ms. Kochar is to produce her BMO account statements or other evidence providing corroboration of where that $20,000 deposit came from. 46 With respect to the undertakings given on oral questioning October 21, 2014 (as summarized at Tab D to the affidavit of Susan Rowat found at Volume 16, Tab 1 of the Continuing Record), the respondent is to satisfy the following outstanding undertakings: 1, 2, 3, 6, 38, 39, and 41.

Further disclosure by Respondent 47 Both sides have agreed to produce their credit card and bank statements on an ongoing basis until trial. Those documents are ordered to be produced quarterly, starting November 1, 2015 by email to the solicitor for the opposite party. 48 I have already addressed the respondent’s request for pre-separation bank account and credit card documents. The applicant seeks the same production from the respondent but he has not established why that information or documentation is relevant to any issue the trial judge will need to decide. It is not enough to say “If I have to do it, she should too.” That request is dismissed. 49 The respondent’s unsuccessful application to lease a Tesla motor vehicle would have included financial representation on her part. The respondent is to execute whatever direction is required to enable the Tesla dealership (or other body to which that application to lease was submitted) to produce to counsel for the applicant a complete copy of that application. 50 In her financial statements sworn July 11, 2012 and May 3, 2013, the respondent stated that she had received jewelry worth $430,000 as wedding presents prior to the date of marriage and that her jewelry on the date of separation was worth $500,000. She now claims that all her jewelry has been sold but has refused to provide any valuations or documents related to the sale or even particulars of the individual items and sale prices for each. The applicant’s request for production of the remain- 198 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

ing jewelry in the respondent’s possession in order for him to have an independent appraisal conducted is too late. The jewelry is gone. How- ever, it is not too late to order the respondent to provide a direction to Oliver Jewelry in Toronto that will authorize release to the applicant’s solicitor of a copy of the inventory of jewelry purchased by Oliver Jew- elry from the respondent and the price paid for each piece. 51 Except as already ordered herein, the requests for additional production and disclosure from the respondent found at Tab B of the applicant’s factum on these motions is dismissed.

Questioning non-parties 52 Steven Pittman’s affidavit of April 2, 2015 explains the method for payment of expenses on Mr. Kochar’s corporate Amex card, a procedure followed by other employees having corporate credit cards. Employees are required to submit receipts for the charges on the card. The account- ing department at Phoenix Group matches receipts with credit card statements and follows-up to obtain any missing receipts. The receipts are reviewed and sometimes questioned as to the nature and/or purpose of the charge to determine if it is a business expense or personal expense. Business expenses are reimbursed to the cardholder. In the case of Mr. Kochar, those items determined to be personal expenses are charged to Cuckoo Kochar’s shareholder loan account. I have addressed this by ordering the applicant himself to produce additional information and documentation. 53 The extensive questioning and disclosure of non-parties as requested by the respondent would cause unacceptable delay and undue expense. That said, she is entitled to some further disclosure, though limited in scope, which the applicant might not be able to provide in a timely manner. If the disclosure and production now ordered proves to be unavailable from the applicant, it would be unfair to the respondent to carry on the case without it. The motion for discovery from non-parties is dismissed but without prejudice to the respondent’s right to bring another similar motion should the applicant fail to provide the production and disclosure now ordered. 54 For now, the Summons to Witness served on each of the non-parties is quashed. Kochar v. Kochar D.R. Aston J. 199

Other requests for relief 55 The applicant’s request to sever and grant the divorce has already been decided, as has the respondent’s claim for life insurance as security for the husband’s support obligation. 56 The parties have suggested there may be a benefit in having this case assigned to Master McLeod or a judge of the Family Court for case management. I will not make that order now, but encourage informal steps to accomplish that assignment. 57 The request to consolidate this proceeding with the foreclosure proceeding is adjourned without a fixed date. It is premature to deal with that request before the pending motion for summary judgment in the foreclosure proceeding. 58 All other requests for relief in the various motions heard October 15 and 16 are either withdrawn or dismissed based on these reasons. 59 If the parties are unable to agree on costs of these motions, written submissions may be directed to my attention within the next 30 days. Motions granted in part. 200 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Dick v. Sapusak] Virginia Jean Dick, Applicant and Richard James Sapusak, Respondent Ontario Superior Court of Justice Docket: FS-14-19456 2015 ONSC 7458 Harvison Young J. Heard: November 23, 2015 Judgment: December 17, 2015* Restitution and unjust enrichment –––– Benefits conferred in anticipation of reward — Family — Common law spouses –––– Parties cohabited from 1993 until 2014 — Parties lived together in house that man and his first wife had purchased — Woman provided services to man when he was not well and required assistance — Woman’s claims for lump sum spousal support, vesting order, and award for unjust enrichment proceeded to trial — Claims allowed — Man was ordered to pay woman damages in amount of $40,324 — Woman did provide housework and cooking services and did not receive any remuneration — Provi- sion of services conferred benefit upon man and constituted corresponding deprivation to woman — There was no juristic reason for man to retain benefit received. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Lump sum award — Miscellaneous –––– Parties cohabited from 1993 until 2014 — Parties lived together in house that man and his first wife had purchased — Woman provided services to man when he was not well and required assistance — Woman’s claims for lump sum spousal support, vesting order, and award for unjust enrichment proceeded to trial — Claims allowed — Woman was awarded lump sum spousal support in amount of $100,000 — Woman had been left with virtually nothing after 21-year relationship — Woman worked hard and retired to look after man, and had no realistic means of increasing her income at this stage in her life — Given ages of parties and difficulties in engaging man, order for continuing support would have been impracticable — Lump sum would enable woman to plan for longer term and to make living arrangements accordingly.

* Additional reasons at Dick v. Sapusak (2016), 2016 CarswellOnt 2241, 2016 ONSC 1094 (Ont. S.C.J.), respecting costs. Dick v. Sapusak 201

Cases considered by Harvison Young J.: Davis v. Crawford (2009), 2009 CarswellOnt 2612, 71 R.F.L. (6th) 54, [2009] O.J. No. 1959 (Ont. S.C.J.) — referred to Kerr v. Baranow (2011), 2011 CarswellBC 240, 2011 CarswellBC 241, 14 B.C.L.R. (5th) 203, 411 N.R. 200, 328 D.L.R. (4th) 577, [2011] S.C.J. No. 10, [2011] A.C.S. No. 10, 93 R.F.L. (6th) 1, 274 O.A.C. 1, [2011] 1 S.C.R. 269, (sub nom. Vanasse v. Seguin) 108 O.R. (3d) 399, 509 W.A.C. 1, 2011 SCC 10, 64 E.T.R. (3d) 1, [2011] 3 W.W.R. 575, 300 B.C.A.C. 1 (S.C.C.) — considered McLean v. Danicic (2009), 2009 CarswellOnt 3289, 95 O.R. (3d) 570, 69 R.F.L. (6th) 367, [2009] O.J. No. 2356 (Ont. S.C.J.) — considered Peter v. Beblow (1993), [1993] 3 W.W.R. 337, 23 B.C.A.C. 81, 39 W.A.C. 81, 101 D.L.R. (4th) 621, [1993] 1 S.C.R. 980, 150 N.R. 1, 48 E.T.R. 1, 77 B.C.L.R. (2d) 1, 44 R.F.L. (3d) 329, [1993] R.D.F. 369, [1993] S.C.J. No. 36, 1993 CarswellBC 44, 1993 CarswellBC 1258, EYB 1993-67100 (S.C.C.) — considered Statutes considered: Courts of Justice Act, R.S.O. 1990, c. C.43 Generally — referred to s. 100 — considered s. 130 — considered Family Law Act, R.S.O. 1990, c. F.3 Generally — referred to Pt. I — referred to Pt. II — referred to s. 33(8)(a) — considered s. 33(8)(c) — considered s. 33(8)(d) — considered s. 33(9) — considered s. 33(9)(a) — considered s. 33(9)(b) — considered s. 33(9)(c) — considered s. 33(9)(d) — considered s. 33(9)(e) — considered s. 33(9)(f) — considered s. 33(9)(l)(i) — considered s. 33(9)(l)(ii) — considered s. 33(9)(l)(v) — considered s. 34(1)(c) — considered Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to 202 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

R. 2(1) “special party” — considered

TRIAL of woman’s claims for lump sum spousal support, vesting order, and award for unjust enrichment.

Lisa Baumal, for Applicant No one for Respondent

Harvison Young J.: Overview 1 This matter proceeded by way of uncontested trial pursuant to the Oc- tober 13, 2015 order of Chiappetta J. The background, and the attempts to permit the respondent to respond to the application for divorce dated April 24, 2014, will be detailed further below. In sum, despite great efforts to engage the respondent Mr. Sapusak, both directly and through his son, no materials have been filed in this matter. Though I am more than satisfied that service has been effected at all steps, Mr. Sapusak appeared only at the first case conference before Goodman J. on October 10, 2014. 2 The applicant Ms. Dick, now 67, and the respondent Mr. Sapusak, now 71, cohabited for over 21 years from 1993 until 2014. They lived together in a house that Mr. Sapusak and his first wife, who died in 1992, had purchased in 1984 for $60,000 at 40 Church Street, Weston (“the property”). According to the evidence, the applicant was locked out of the home on March 28, 2014 by the respondent’s son Chris and has not been permitted to return since that date. 3 The applicant seeks lump sum support in the amount of $100,000. In addition, she seeks a monetary award in the amount of $57,000 to reflect the value received by Mr. Sapusak for her services during the last two- and-a-half years of their relationship when he was unwell and required assistance with his banking, dressing, personal care and so on, all of which she provided in addition to the cooking and cleaning responsibilities she had assumed during their cohabitation. She also seeks an order that the property be vested in her so that she can sell it and account to him for the proceeds, on the basis that his record of non-cooperation demonstrates that she will otherwise not be able to recover anything that the court awards to her. Finally, she seeks an order for pre-judgment interest and costs. Dick v. Sapusak Harvison Young J. 203

Background 4 The history of the attempts to obtain a response from Mr. Sapusak has been set out in the endorsements in the file in this matter. As Ms. Dick related in the course of her testimony, she came to believe that Mr. Sapusak was suffering from dementia during the last two-and-a-half years of their relationship. He would become confused and sometimes had trouble dressing himself. He became confused when driving, having trouble knowing where he was or where he was going. He urinated in inappropriate places and denied doing so. He had trouble writing and required the applicant’s assistance with his banking. Ms. Dick tried to per- suade him to seek medical help, but according to her, he did not do so because he was afraid he would lose his driver’s permit. Eventually, she said, he did stop driving and his son Chris began driving him around as necessary. Ms. Dick testified that she had retired about two-and-a-half years before the separation, at least in part in order to care for Mr. Sapusak. Prior to that, she had been employed as a machine operator with a company called Bic through an employment agency for 16 years, and at similar jobs before that. She worked 40 hours each week and earned $11 an hour. 5 Ms. Dick testified that about a month before being locked out of the home, Mr. Sapusak had asked her to marry him. She stated that this was because he was aware that he was unwell and that she had been caring for him. No date was set. She testified that her impression was that the respondent’s son Chris Sapusak was not happy about this. Ms. Dick was aware that Mr. Sapusak was lending Chris about $3,500 a month to cover his mortgages on two houses because he had become unemployed. 6 On March 14, 2014, Ms. Dick left the home to visit a friend after the respondent had become aggressive toward her. She stated that this happened very occasionally, and that she had just left to give him a chance to cool off. While she was at her friend’s home, Chris Sapusak called her and told her not to come back. When she tried to return she found that the locks had been changed. 7 The question of Mr. Sapusak’s capacity has been a live issue in this litigation from the outset. Both Goodman J. (at the October 10, 2014 case conference) and Paisley J. (when the applicant filed a 23C motion) raised the question of whether, given the circumstances, Mr. Sapusak was a “special party” within the meaning of s. 2(1) of the Family Law Rules, O. Reg. 114/99. Goodman J. adjourned the case conference to permit Mr. Sapusak to retain counsel, and serve and file his Answer, Financial State- 204 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

ment and Case Conference Brief. She also provided that once counsel was obtained, counsel would advise Ms. Baumal as to who, if anyone, would be proposed as a personal representative for Mr. Sapusak. None of that happened. Goodman J. noted in her endorsement that Chris Sapusak showed considerable animosity toward Ms. Dick in the course of that appearance. 8 By the return of the case conference before Conway J. on November 28, 2014, none of those steps had been taken. Chris Sapusak sent a letter to the court (without copying counsel for the applicant) the day before, advising that he and his father both had medical issues and would not be attending. Conway J. refused to grant the requested adjournment, ordering that the parties were free to bring motions, advising the respondent to seek immediate legal advice and reminding him of the rules governing responding to family law proceedings. She also ordered Ms. Baumal to send a copy of the endorsement to both Mr. Sapusak and Chris. Ms. Baumal has done so. In fact, it is clear from the record that she has been scrupulous about sending every relevant document to both Mr. Sapusak at the 40 Church Street address as well as to the Bradford address of Chris Sapusak. Ms. Dick testified that she believes that Mr. Sapusak has been living at Chris’s home in Bradford. 9 The applicant then brought a motion for various relief. The motion was heard by Kruzick J. on January 27, 2015 on an unopposed basis because Kruzick J. found that despite having been served, neither Chris nor the respondent appeared and had not contacted Ms. Baumal. He granted an order restraining the respondent from “depleting, dissipating, disburs- ing or otherwise dealing with his assets, including but not limited to 40 Church Street” which remains in effect. 10 The applicant subsequently brought a motion for judgment on an uncontested trial. Paisley J., by endorsement dated June 22, 2015, wrote as follows: It seems relatively clear that the Respondent is a “special party”. The Applicant states in her affidavit in support of this motion that she noticed the Respondent was suffering memory loss approximately 2.5 years ago, and other signs of dementia e.g. the Respondent would urinate on the floor or in his pants and then deny that he had done this, and would forget where he was driving and become very confused. 11 Paisley J. ordered that the applicant serve the Public Guardian and Trustee with a copy of the motion record. Dick v. Sapusak Harvison Young J. 205

12 The applicant then brought a motion (Form 14) dated September 14, 2015 for an order finding the respondent to be a “special party” within the meaning of Rule 2(1). The motion was heard on October 13, 2015 by Chiappetta J. who noted that the motion materials were duly served on both the respondent and the respondent’s son Chris who had attended with him before Goodman J. at the case conference on October 10, 2014. Ms. Davidson attended the motion on behalf of the Public Guardian and Trustee. Ms. Davidson advised the court that she had spoken with the respondent who had indicated that if anyone was to act on his behalf, it was to be his son. Neither the respondent nor his son appeared at that motion. 13 Chiappetta J. found that the record before her was insufficient to demonstrate that the respondent meets the definition of “special party.” She dismissed that motion, but ordered that the applicant be permitted to proceed to an uncontested hearing as a result of the respondent’s failure to serve an Answer and Financial Statement in accordance with the Fam- ily Law Rules and his failure to comply with the order of Goodman J. dated October 10, 2014. She also ordered that the respondent be served with the trial record and her endorsement at both the Church Street address and the son’s address. This was done. 14 Neither counsel for the applicant nor the applicant personally has heard anything from the respondent or his son. The record is replete with attempts on Ms. Baumal’s part to engage the respondent and/or his son. She has sent numerous letters to both addresses and advised them of all the court dates, including this trial date. Neither appeared today. It is very clear on the record before me that there has been no cooperation on this matter by the respondent. It is difficult to imagine what more the applicant could have done to procure a response from Mr. Sapusak or indeed from his son.

The Issues 15 There are three central issues to be determined in this uncontested trial: a. Has the applicant established her claim of unjust enrichment by virtue of her unpaid services provided to Mr. Sapusak during the last two-and-a-half years of their relationship? If so, what is the appropriate measure of such an award? b. Is this an appropriate case for the award of lump sum spousal support? If so, what is an appropriate award? 206 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

c. Is this an appropriate case for a vesting order in light of the history of non-cooperation by the respondent and/or his son?

The Unjust Enrichment Claim 16 The applicant claims that Mr. Sapusak was unjustly enriched eco- nomically by the services that she provided to him in the last two-and-a- half years of their relationship because, had she not done so, he would have had to hire assistance. The absence of any remuneration for her assistance is, she argues, a corresponding deprivation. 17 I found Ms. Dick’s evidence to be forthright and candid. She testified that for most of the time they lived together, she did the housework and cooking and Mr. Sapusak did the outside work such as gardening and snow removal. He paid the property taxes but they shared the other house related expenses. She testified that he always referred to the house as “our” house, and that to her knowledge he had a will which provided that upon his death the house would go to his son Chris and $30,000 would go to Ms. Dick. She also testified that they referred to each other as “wife” and “husband” respectively and that is how they were known in the community. They visited their families together and celebrated holidays as families do. 18 The applicant’s written materials claimed unjust enrichment on the basis of the applicant’s services (housework, cooking) throughout the relationship. However, Ms. Baumal’s oral submissions restricted the unjust enrichment claim to the additional care she provided during the last two- and-a-half years when the respondent was unwell. 19 On the basis of Ms. Dick’s evidence, which was of course uncontested and which I accept, I am satisfied that she did provide such services and did not receive any remuneration. I am also satisfied that this was a clear benefit to Mr. Sapusak. 20 As the Supreme Court of Canada held in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.), at para. 42, citing Peter v. Beblow, [1993] 1 S.C.R. 980 (S.C.C.), there is no longer any doubt that domestic services are benefits to the recipient: They constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion de- values contributions, mostly by women, to the family economy (Pe- ter, at p. 993). The unpaid provision of services (including domestic services) or labour may also constitute a deprivation because the full- time devotion of one’s labour and earnings without compensation Dick v. Sapusak Harvison Young J. 207

may readily be viewed as such. The Court rejected the view that such services could not found an unjust enrichment claim because they are performed out of “natural love and affection” (Peter, at pp. 989-95, per McLachlin J., and pp. 1012-16, per Cory J.). 21 In this case, I am satisfied that the provision of the services performed by Ms. Dick for Mr. Sapusak during the last two-and-a-half years of their relationship conferred a benefit upon Mr. Sapusak and constituted a corresponding deprivation to Ms. Dick. 22 There is no juristic reason for Mr. Sapusak to retain the benefit received. There was no evidence led of any contract or of any facts that justify this. I note that, had Ms. Dick been claiming unjust enrichment for the entire period of the relationship, her claim would have been more difficult as the parties were sharing domestic responsibilities for most of their life together. According to Ms. Dick’s testimony, she did the cooking and cleaning and he did the outside work including the gardening and snow clearing. Mr. Sapusak’s additional needs during the last two-and-a- half years, however, after Ms. Dick retired, were much more consuming, and Ms. Dick was still performing the routine housework that she had always done. 23 The next question is the appropriate remedy for the unjust enrichment. While the applicant’s written materials seek a constructive trust, with quantum meruit as an alternative remedy, Ms. Baumal acknowledged that the constructive trust remedy is problematic in this case, as there is no link between the asset which she seeks to impress with the trust (the home at 40 Church Street, Weston) and the services Ms. Dick provided. The house was purchased many years ago, before their relationship began, and there was no mortgage on the house at the time they began cohabiting in it. The best evidence of the current value of the house was Ms. Dick’s evidence that on the basis of her understanding of the listing prices for houses in the neighborhood, it is worth somewhere around $500,000. Given the circumstances and Mr. Sapusak’s lack of cooperation, there was no way to obtain an appraisal of the house and I accept the amount of $500,000 as an estimate of the value of the home. 24 This is a case, as Ms. Baumal conceded, in which quantum meruit, in terms of the value received for the services provided, is the most appropriate remedy for the unjust enrichment claim as framed. 25 The next question is how to value the services provided by Ms. Dick over those two years. Part of this difficulty arises because of the respondent’s failure to participate in this application. Prior to December 2012, 208 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Ms. Dick worked as a packager and machine operator for a packaging company. She earned $11 an hour, worked 40 hours a week and had been there for 16 years. She held similar jobs before that. She has a grade eight education. Ms. Dick testified that she stopped working “as I thought it was time and to take care of Jim.” It was clear from her evidence that Mr. Sapusak’s problems with confusion and memory had already begun. 26 Ms. Baumal submitted that the most reasonable manner of assessing the value received for the services provided by Ms. Dick from January 2012 was to base it upon average wages for such positions. She led a report from www.payscale.com/research/CA indicating that the median wage is $13 per hour, amounting to an annual salary of about $27,000. She submitted that from this amount which totals approximately $67,600 for the two-and-a-half years that Mr. Sapusak was unwell and requiring the additional care, $500 per month should be deducted to reflect the fact that Ms. Dick was receiving room and board over that period of time, for a net value received by Mr. Sapusak of $52,600 for the two-and-a-half years, or approximately $1,753 per month. However, I note that Ms. Dick’s evidence was that she left her job in December 2012 to care for Mr. Sapusak full-time. I do not think it is appropriate to make an award based on full-time care before that time. She cared for him full time for approximately 16 months and, based on the above figures, that would amount to $28,053 ($1,753 × 16). Given her clear evidence that Mr. Sapusak required additional care for the approximately 14 months before that while Ms. Dick was working full-time, I would award half of that amount for that period, i.e. ($1,753 × 14 divided by 2) $12,271 for a total amount owing to Ms. Dick of $40,324.

Spousal Support 27 The second issue to be determined is whether the court should award lump sum spousal support as sought by the applicant. The first question is whether entitlement has been established. The applicant is entitled to support. This was a relationship of long duration, approximately 21 years. Ms. Dick was clearly a spouse. She and Mr. Sapusak cohabited as man and wife, they referred to and introduced each other as “wife” and “husband” respectively and they shared the basic expenses and domestic responsibilities in the sense that she did the cooking and housecleaning, and he did the gardening and snow clearing. They did the grocery shopping together. Dick v. Sapusak Harvison Young J. 209

28 I find that the applicant is a spouse within the meaning of the Family Law Act, R.S.O. 1990, c. F.3 (the “Act”): see Davis v. Crawford [2009 CarswellOnt 2612 (Ont. S.C.J.)], 2009 CanLII 23872, at para. 34. The relevant purposes of an order for support are outlined in s. 33(8) of the Act as follows: (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; ... (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). 29 The applicant seeks a lump sum award of $100,000 in spousal support. The parties are not married and, accordingly, no order is to be made under Part I or Part II of the Act. Apart from the award set out above for quantum meruit and what is left of her savings (roughly $11,000), the applicant receives only $1,350 per month in pension payments. A support order is necessary to relieve her financial hardship arising from the breakdown of the relationship. 30 Section 33(9) of the Act sets out some of the factors to consider in determining an amount for support. Those relevant factors are as follows: (a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; ... (l) if the dependant is a spouse, (i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, 210 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

... (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, 31 It is clear from the facts that there always was an income differential between these parties. Ms. Dick was not sure how much Mr. Sapusak earned as a drywall taper but she testified that it was always significantly more than she earned. At the time of the separation, Mr. Sapusak was receiving a pension of about $2,300 per month, and Ms. Dick was in receipt of about $1,000 per month (Old Age Pension and CPP). During the relationship, both she and Mr. Sapusak were able to save money. She saved about $30,000, an amount which she has been required to deplete since the separation for basic living expenses. Ms. Dick testified that Mr. Sapusak had opened a joint savings account that he told her was for her benefit if anything happened to him. Mr. Sapusak would deposit his pension into that account, and she used it to pay bills for him. According to Ms. Dick, it had about $60,000 in it when they separated, but when she checked into it shortly after the separation, it had been closed. 32 Moreover, Ms. Dick testified that she was aware that Chris owned two houses with mortgages and had lost his job and that Mr. Sapusak was “lending” him $3,800 per month to cover his mortgages. A recent title search indicates that the house where the parties lived at 40 Church Street, Weston, is unencumbered. 33 Since the separation, Ms. Dick has been living with a friend and paying room and board in the amount of $500 per month. She testified that this is not an arrangement that can continue indefinitely and she needs to be able to rent her own apartment, something she cannot presently afford to do. 34 Beginning in April 2013, Ms. Dick was receiving $450 per month in CPP benefits and $550 per month in Old Age Security for a total of $1,000. According to her most recent Financial Statement, she has recently started receiving the Guaranteed Income Supplement so that her total monthly income is now $1,350 per month. 35 In short, it is clear that during the relationship Mr. Sapusak’s financial wellbeing increased. During the period that they were together, he saved Dick v. Sapusak Harvison Young J. 211

(according to Ms. Dick) at least $60,000, which was in the joint account, in addition to the appreciation to 40 Church Street in his name. I also note that, due to the absence of any cooperation or disclosure from the respondent, there is no way of knowing if he has additional assets, although I only take into account the estimated value ($500,000) of Church Street and Ms. Dick’s evidence that there had been a joint back account that, to her knowledge, had about $60,000 in it which was closed shortly after the separation. 36 In this case, Ms. Dick has been left with virtually nothing after a 21- year relationship. She worked hard and retired to look after Mr. Sapusak. She has no realistic means of increasing her income at this stage in her life. Mr. Sapusak, on the other hand, is much better off, with a house that has continuously appreciated and savings that he put aside during the relationship that were significantly more than what Ms. Dick was able to set aside. This couple lived modestly; however without support, Ms. Dick cannot afford a basic lifestyle that begins to approximate the life they shared. As both parties are retired and given Mr. Sapusak’s age and health, there is no prospect of additional income in the future and there was no evidence led that suggested any prospect of additional resources for either party. 37 The Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, July 2008) [the Guidelines], using the amounts of $1,350 per month for Ms. Dick and $2,300 for Mr. Sapusak, yield monthly amounts of between $299-$399 for an indefinite duration and lump sum awards of between $55,585 and $70,844. 38 In light of the circumstances of this case and the objectives of spousal support as set out above, however, I am of the view that this amount is not adequate as support for Ms. Dick. First, due to the absence of any disclosure from Mr. Sapusak, it is not clear that this is in fact his entire income available for support. 39 Second, this amount would not enable Ms. Dick to relieve the financial hardship which has flowed from the end of this relationship. The Guidelines contemplate a number of exceptions when the amounts generated by the Guidelines are inconsistent with the support factors and objectives found in the legislation and an appropriate result can only achieved by departing from the formula. One such applicable exception may be the basic needs/hardship exception under s. 12.7, which applies under the without child support formula in the following circumstances: 212 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

• the formula range, even after restructuring, will not provide sufficient income for the recipient to meet her or his basic needs • the reason will be that the recipient’s base or non-support income is zero or too low • the marriage will typically be short to medium in length, e.g. 1 to 10 years • the payor spouse will have the ability to pay (Guidelines at p. 129). 40 Given Ms. Dick’s age, there is no realistic way for her to achieve self- sufficiency. The range generated by the formula will not allow Ms. Dick to meet her basic needs. In the Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (Ottawa: Justice Canada, March 31, 2010), at p. 22, Professors Rogerson and Thompson comment that “the circumstances of illness and low income that are often experienced by the elderly may require consideration of exceptions to the SSAG.” The User’s Guide references Marie Gordon’s article, “Back to Boston: Spousal Support after Retirement” (2009) 28 C.F.L.Q. 125, in which Gordon emphasizes that courts have taken a practical approach to spousal support orders when dealing with retired spouses, and that the courts’ determination of need and compensatory entitlement trump other obligations, because “the courts acknowledge the deep economic disadvantage experienced by many payees after very long-term marriages, and the pressing needs that characterize late-life reality for many former spouses” (p. 144). 41 Third, at this stage in Ms. Dick’s life and in Mr. Sapusak’s life, it is common and expected that, to some extent, people dip into their capital. For most of their life together, Mr. Sapusak did earn more money and that permitted them to life comfortably, if modestly, and to continue living in a mortgage-free home that appreciated in value. Mr. Sapusak continues to enjoy the advantage of a mortgage-free home and this effectively means that he is able to enjoy a better lifestyle on his income than Ms. Dick could without such a benefit. Put another way, this is a case in which Mr. Sapusak’s pension income (assuming that this is his entire income) is not an adequate indicator of his economic situation and his ability to pay support given the other assets that he has and that contribute to his lifestyle. In the User’s Guide at p. 24, the authors write that after retirement, income alone may not be an accurate indicator of either the recipient’s or payor’s economic circumstances, and in some cases, they may be required to draw on capital for support purposes. This is one Dick v. Sapusak Harvison Young J. 213

such case where it is appropriate for Mr. Sapusak to draw on his capital for support purposes. 42 A lump sum award is appropriate in this case. Given the ages of the parties and the difficulties in engaging the respondent, an order for continuing support would be impracticable. A lump sum will satisfy this concern. The house at 40 Weston Road is available to satisfy this claim as well as the quantum meruit claim. Lump sum awards are also appropriate in non-compensatory or “transitional” support. Having a lump sum award will enable Ms. Dick to plan for the longer term and to make living arrangements accordingly. 43 I find that, taking into account all the factors cited above, including the needs and means of the parties, an award of $100,000 is appropriate as lump sum spousal support. I note that this amount is less than half of the appreciation of 40 Church Street over the 21 years of the parties’ cohabitation, assuming that it appreciated evenly over the course of the 31 years that Mr. Sapusak has owned it since purchasing it for $60,000 in 1984.

Vesting Order 44 Ms. Baumal submits that the court should order that 40 Church Street be vested in the applicant for the purpose of selling it pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990 c. C.43, as this court ordered in McLean v. Danicic (2009), 95 O.R. (3d) 570 (Ont. S.C.J.). She argues that the history of non-cooperation on the part of Mr. Sapusak and/or his son Chris indicates that, as in McLean, there will be no cooperation in selling the property as necessary to generate the amounts Ms. Dick is owed. 45 Section 100 of the Courts of Justice Act gives the court a broad authority to make a vesting order: A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed. 46 Section 34(1)(c) of the Family Law Act also confers the power to grant a vesting order on an application for support: see McLean, paras. 103-111. 47 The combination of these two legislative provisions grounds the vesting order sought in this case with respect to both the quantum meruit award and the lump sum support award. However, I am not convinced that the conduct of the respondent at this point justifies the award. 214 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

48 In McLean, the respondent’s conduct had gone far beyond non-participation in the proceedings and his conduct in attempting to prevent the applicant from pursuing her claims had been extreme and resulted in criminal charges of uttering threats and extortion. His Answer had been struck. 49 On the other hand, as Ms. Baumal also submits, I am satisfied that Ms. Dick cannot afford to keep coming back to court for further orders to enforce this judgment. 50 For this reason, I order that unless this judgment has been satisfied in full within 45 days of the release of these reasons, the property at 40 Church Street, Weston shall vest in the applicant so that she may list and sell the property to secure payment of the quantum meruit award and the lump sum support award.

Pre-judgment Interest 51 Having considered the factors set out in s. 130 of the Courts of Jus- tice Act, I am satisfied that this is an appropriate case in which to order pre-judgment interest at the appropriate rate. The applicant was locked out of her home of 21 years without even her personal possessions and with very little means. The respondent and his son have refused to cooperate as required by the rules. In the meantime, the applicant has not had the use of any of the funds that have been due to her.

Conclusion 52 In conclusion, the following orders will issue: 53 As a result of the foregoing analysis and conclusions, the applicant will be entitled to judgment for the following relief: a. Quantum meruit damages in the amount of $40,324 and pre-judgment interest at the Courts of Justice Act rate from the date of commencement of this application; b. Lump sum spousal support in the amount of $100,000, and pre- judgment interest at the Courts of Justice Act rate from the date of commencement of this application; c. A vesting order in 40 Church Street, Weston, to secure the payment of the above amounts including pre-judgment and post-judgment interest pursuant to the Courts of Justice Act if it has not been satisfied within 45 days of the release of this decision. Dick v. Sapusak Harvison Young J. 215

Costs 54 The applicant may make brief submissions as to costs in writing within 15 days. Claims allowed. 216 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Cockerham v. Hanc] Chrystal Dawn Cockerham, Applicant and Kristopher Ryan Hanc, Respondent Ontario Court of Justice Docket: Brampton 10016/15 2015 ONCJ 736 A.W.J. Sullivan J. Judgment: December 21, 2015 Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Entitlement — Requisite period of cohabitation –––– Parties cohabited from 2007 to 2014, with possible brief separations in 2009 and 2010 — Woman pursued medical degree out of country starting in 2011, and parties continued relationship — Woman finished medical studies but had not yet completed exams and residency to be able to practice medicine — After separation, woman moved to BC to live with her parents — Woman brought application for spousal support pursuant to Interjurisdictional Support Orders Act — Application granted — Man was ordered to pay woman spousal support of $2,500 per month from April 2014 to April 2017 — Parties were in common law relationship as defined by legislation for just over six years — Parties were committed to each other and had planned their lives as common law couple — Physical separation in this case was due to woman’s educational program and they continued to demonstrate commitment to each other while she was away — It was not entirely necessary that parties’ relationship be defined as either traditional or modern to accept fact that parties were common law couple — Woman was entitled to support on non-compensatory basis, as she had experienced drop in living standards after separation. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Quantum of support –––– Parties cohabited from 2007 to 2014 — Man was lawyer who earned $310,000 in 2015 — Parties cosigned loan, allegedly to help pay for woman’s medical education — Woman finished medical studies but had not yet completed exams and residency to be able to practice medicine — After separation, woman moved to BC to live with her parents — Woman brought application for spousal support pursuant to Interjuris- dictional Support Orders Act — Application granted — Man was ordered to pay woman spousal support of $2,500 per month from April 2014 to April 2017 — Support order would assist woman in obtaining her qualifications which would allow her to become self-sufficient, but was limited to period of time it would take woman to complete her residency — No income was imputed to woman Cockerham v. Hanc 217

because she was pursuing her medical qualifications, which was plan put in place during relationship and agreed upon by both parties — Notice of woman’s claim for support was made to man before she brought this application, so she was entitled to have support award made retroactive to April 2014 — Man was not entitled to set off his loan payments against support payments, as there was no authority to attribute obligations with respect to loan to each party. Cases considered by A.W.J. Sullivan J.: Bracklow v. Bracklow (1999), 1999 CarswellBC 532, 1999 CarswellBC 533, 169 D.L.R. (4th) 577, [1999] S.C.J. No. 14, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196 W.A.C. 211, [1999] 1 S.C.R. 420, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, [1999] R.D.F. 203 (S.C.C.) — considered Bremer v. Bremer (2005), 2005 CarswellOnt 601, 13 R.F.L. (6th) 89, [2005] O.J. No. 608 (Ont. C.A.) — referred to Campbell v. Szoke (2003), 2003 CarswellOnt 3362, 45 R.F.L. (5th) 261, [2003] O.J. No. 3471, [2003] O.T.C. 802 (Ont. S.C.J.) — referred to Campbell v. Szoke (2005), 2005 CarswellOnt 186, 193 O.A.C. 289, 12 R.F.L. (6th) 263, [2005] O.J. No. 154 (Ont. C.A.) — referred to DeSouza v. DeSouza (1999), 1999 CarswellOnt 1550, 48 R.F.L. (4th) 63, [1999] O.J. No. 1811 (Ont. Prov. Div.) — followed Fisher v. Fisher (2008), 2008 ONCA 11, 2008 CarswellOnt 43, [2008] O.J. No. 38, 88 O.R. (3d) 241, 47 R.F.L. (6th) 235, 232 O.A.C. 213, 288 D.L.R. (4th) 513 (Ont. C.A.) — referred to Halliday v. Halliday (1997), 1997 CarswellOnt 5077, 37 O.R. (3d) 475, 37 R.F.L. (4th) 192, 114 O.A.C. 143, [1997] O.J. No. 5241 (Ont. C.A.) — considered Hazlewood v. Kent (June 20, 2000), Doc. 7621/99, [2000] O.J. No. 5263 (Ont. S.C.J.) — considered Kerr v. Baranow (2011), 2011 CarswellBC 240, 2011 CarswellBC 241, 14 B.C.L.R. (5th) 203, 411 N.R. 200, 328 D.L.R. (4th) 577, [2011] S.C.J. No. 10, [2011] A.C.S. No. 10, 93 R.F.L. (6th) 1, 274 O.A.C. 1, [2011] 1 S.C.R. 269, (sub nom. Vanasse v. Seguin) 108 O.R. (3d) 399, 509 W.A.C. 1, 2011 SCC 10, 64 E.T.R. (3d) 1, [2011] 3 W.W.R. 575, 300 B.C.A.C. 1 (S.C.C.) — followed Lust v. Lust (2007), 2007 ABCA 202, 2007 CarswellAlta 808, [2007] A.J. No. 654, 417 A.R. 106, 410 W.A.C. 106 (Alta. C.A.) — considered Marinangeli v. Marinangeli (2003), 2003 CarswellOnt 2691, 38 R.F.L. (5th) 307, [2003] O.J. No. 2819, 174 O.A.C. 76, 228 D.L.R. (4th) 376, 66 O.R. (3d) 40 (Ont. C.A.) — referred to McEachern v. Fry Estate (1993), [1993] O.J. No. 1731, 1993 CarswellOnt 3632 (Ont. Gen. Div.) — referred to Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376, 1980 CarswellOnt 274, [1980] O.J. No. 1904 (Ont. Dist. Ct.) — followed 218 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Perino v. Perino (2007), 2007 CarswellOnt 7171, 46 R.F.L. (6th) 448, [2007] O.J. No. 4298 (Ont. S.C.J.) — referred to Phillips-Curwin v. Curwin (2008), 2008 NSSC 198, 2008 CarswellNS 328, [2008] N.S.J. No. 267 (N.S. S.C.) — considered Rilli v. Rilli (2006), 2006 CarswellOnt 6335, [2006] O.J. No. 4142 (Ont. S.C.J.) — referred to S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2006] S.C.J. No. 37, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231, [2005] S.C.C.A. No. 100 (S.C.C.) — followed Saunders v. Saunders (2010), 2010 NSSC 304, 2010 CarswellNS 490, 88 R.F.L. (6th) 363 (N.S. S.C.) — referred to Stephen v. Stawecki (2006), 2006 CarswellOnt 3653, 24 E.T.R. (3d) 186, 213 O.A.C. 199, 32 R.F.L. (6th) 282, [2006] O.J. No. 2412 (Ont. C.A.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Family Law Act, R.S.O. 1990, c. F.3 Generally — referred to s. 1(1) “spouse” — considered s. 3 — considered s. 29 “spouse” — considered s. 30 — considered s. 33(8) — considered s. 33(8)(c) — considered s. 33(8)(d) — considered s. 33(9) — considered s. 34 — considered s. 34(1)(e) — considered Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to s. 56.1(2) — considered s. 60.1(2) — considered Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29 Generally — referred to Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to Cockerham v. Hanc A.W.J. Sullivan J. 219

R. 37 — considered

APPLICATION by woman for spousal support.

Applicant, for herself Mr. C. Burrison, for Respondent

A.W.J. Sullivan J.:

1 This is the decision in the application filed by Ms. C. Cockerham, the Applicant, for support in the amount of $2500.00 per month commencing March 1, 2014. Ms. Cockerham resides in Kamloops, British Columbia. Ms. Cockerham has a medical degree from the University of Sint Eusta- tius in the Caribbean. Currently she is not licensed to practice in either Canada or the United States. Her medical degree is recognized both in Canada and the United States. She is currently residing with family in Kamloops, British Columbia. 2 The Respondent, Mr. K. Hanc, resides in Mississauga, Ontario. He is a practicing lawyer and a partner in a Toronto law firm. He opposes Ms. Cocker-ham’s support claim, indicating that she is capable of working and asked the court to deny this claim. Mr. Hanc argues that the parties did not live together for the qualifying period of time under the legislation as a common-law couple. In the alternative, Mr. Hanc states that Ms. Cockerham is capable of supporting herself, she was employed in the past, and Mr. Hanc is asking the court to impute income to her in the amount of $90,000.00 per year. Mr. Hanc further requests that this court consider, as a set-off against any support order that may be granted, the monthly payments that he is making towards a line of credit which he argues is Ms. Cockerham’s sole responsibility. 3 The support application by Ms. Cockerham is filed pursuant to the Inter-jurisdictional Support Orders Act [S. B. C. 2002, c. 29]. ISAO. The hearing of this matter was held in chambers considering the pleadings filed in the continuing record in volumes 1, 2, and 3, specifically: A — Support application volume 1, tab 1. B — Requests for support order form F, volume 1, tab 2. C — Support for claimant form J volume 1, tab 3. D — Financial statement Applicant volume 1, tab 4. E — Affidavit general Applicant volume 1, tab 5. F — Form 37 notice of hearing, volume 1, tab 6. 220 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

G — Affidavit of service and information sheet — volume 1, tabs 6 and 7. H — Answer — Respondent, volume 2, tabs 1. I — Affidavit of service x2 from Respondent volume 2, tab 1. J — Notice of motion Respondent October 13, 2015 volume 2, tab 2. K — Affidavit general from Respondent volume 2, tab 3. L — Financial statement Respondent volume 2, tab 4. M — Affidavit general Applicant October 19, 2015 volume 3, tab 1. N — Affidavit general Respondent October 22, 2015 volume 3, tab 2. O — Affidavit general Applicant October 26, 2015 volume 3, tab 3. 4 In this ISOA application Ms. Cockerham relies on the law in Ontario dealing with support issues. As this is a new application, with no previous orders being made, part two of ISOA will be referenced as well as rule 37 of the Ontario Family Law Rules. Both set out the procedure where no support orders previously exists and a claimant in a recipro- cating jurisdiction seeks spousal support from the Respondent ordinarily resident in Ontario, which is the case in this matter. 5 In Ms. Cockerham’s Application under the section entitled “family history section” she claims that the parties were living together from Au- gust 2007 through to the date of separation being February 22, 2014. 6 In reviewing the exchange of pleadings in the file, the parties were common-law and never married. The law therefore that will be relied on in this court’s jurisdiction is the Family Law Act (FLA). 7 In 2014 Ms. Cockerham started a claim for spousal support in the Supreme Court of British Columbia. That action was dismissed based on that court’s finding that the jurisdiction of convenience was in Ontario; hence this application pursuant to the Interjurisdictional Support Orders Act was commenced.

Issues 8 This Application presents the following issues to be decided: i. The Applicant’s entitlement to spousal support. Cockerham v. Hanc A.W.J. Sullivan J. 221

II. If entitlement is established, what should the quantum of support be, considering the Applicant’s ability and efforts to support herself and whether income should be imputed to her? III. If support is granted, can this court set off any third-party payments; specifically a bank loan, and can this court classify these loan payments as taxable support payments? 9 The application is for spousal support in the amount of $2500.00 per month commencing March 1, 2014. Ms. Cockerham indicates that she and the Respondent began living together in August 2007 and separated in February 22, 2014. 10 Mr. Hanc has answered this application. In addition, he has filed a notice of motion, found at volume 2, tab 3, and an affidavit in support dated October 13, 2015, reinforcing his opposition to this application and requests the following orders: 1. An order striking paragraphs 18, 19 and 26 of the June 18, 2015 affidavit of the applicant. 2. An order that the Applicant is not entitled to spousal support and that the application be dismissed. 3. In the alternative to paragraph 2 that if this court determines the Applicant is entitled to spousal support, then an order that income shall be imputed to the Applicant. 4. That if the court finds that the Applicant is entitled to spousal support, then an order that the debt payments that the Respondent makes to RBC on behalf of the Applicant shall be offset in full from any support order that this court makes, retroactive to Janu- ary 2015 and, if necessary, an order that those loan payments shall be taxable to the Applicant and tax-deductible to the Respondent, retroactive to January, 2015, pursuant to section 56.1 (2) and 60.1 (2) of the Income Tax Act, and costs for full recovery basis. 11 Ms. Cockerham responded to this notice of motion with an affidavit dated October 19, 2015, found at volume 3, tab 1. 12 Mr. Hanc filed a reply affidavit dated October 22, 2015, volume 3, tab 2, and the Applicant filed a further affidavit dated October 26, 2015, volume 3, tab 3. 13 At this point in the decision I wish to review the ISOA procedure. It is not usual for the court to have the exchange of affidavits to the extent that this file has received. I have permitted, according to the Family Law Rules, the exchange of affidavits in support and in response and final 222 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

reply to the notice of motion filed by the Respondent in this matter found at volume 2, tab 2. 14 The last affidavit of the Applicant found at volume 3, tab 3 has been permitted, not so much as a further response to the motion but rather as part of the Applicant’s initial application. 15 The relevant facts from the each of the affidavits has been considered by the court and reviewed below. These facts are the principal facts that concern the court in this matter. 16 In Mr. Hanc’s notice of motion there is a request for this court to strike paragraphs 18, 19 and 26 of the Applicant’s initiating affidavit dated June 18, 2015 volume 1, tab 5. I have reviewed those paragraphs and consider the content to touch on discussions regarding potential settlement offers and according to the Rules these paragraphs will be struck. Therefore, I have not considered this information. 17 In addition, both the Applicant and the Respondent have filed affidavits that they had filed in the British Columbia proceeding. They make reference to these earlier affidavits and respond to comments of each other from these earlier affidavits in this proceeding. Also filed with this court was the decision from the British Columbia court. I will accept the affidavits filed in the B.C. action as sworn statements by each party in this proceeding, as both parties have referenced these earlier affidavits. The decision from the Superior Court, British Columbia has no weight in the considerations and findings in this decision. This court has relied on the material filed as noted above in making its own findings on this evidence.

Facts in Dispute Entitlement to support; classification of relationship 18 In the Applicant’s Form J, Ms. Cockerham claims that the total years of cohabitation with the Respondent were six years and six months. 19 Mr. Hanc claims the parties began living together in the fall of 2007 1 and had two periods of separation over the next 2 /2 years, the first being in January 2009 for about 3 to 4 months and again in the summer of 2010. His evidence is that when the parties reconciled in mid-2009 it lasted for one year when they again separated in 2010. 20 Ms. Cockerham’s evidence is that their relationship was continuous from August 2007 through the separation on February 22, 2014. She classifies this relationship as marriage-like and points out that the Re- Cockerham v. Hanc A.W.J. Sullivan J. 223

spondent proposed mar-riage in December 2011 at which time the parties were engaged. An engagement ring was exchanged. 21 In January 2011 she pursued her medical education in the Caribbean at which time they were apart in distance only but, according to her, she maintained her address at Mr. Hanc’s Toronto condominium and she was devoted to their relationship. 22 Ms. Cockerham’s evidence is that they were known publicly as a couple and that Mr. Hanc referred to her in social media texts as his wife. She argues that they shared most expenses and household bills and they would take turns paying for restaurant meals that were over a certain price and they often ate out. Ms. Cockerham claims she paid for groceries, household supplies, and frequently traveled to markets to obtain specific food ingredients for meals she prepared. She also assisted in ironing the Respondent’s shirts, polished his shoes, and paid at times condominium fees. She notes that she assisted in purchasing a Mercedes vehicle, providing a $5000.00 down payment on her Visa credit card towards this purchase and had installed custom closets in the Toronto condominium. 23 According to Ms. Cockerham, Mr. Hanc told her when she was not working that he enjoyed having her home to assist with cooking, cleaning and running various errands for him. She indicates that he had texted friends and sent photographs with statements like “look what Mr. Hanc has made for dinner”. 24 Mr. Hanc’s description of the relationship is contrary to that of the Applicant, indicating that there were periods of separation where Ms. Cockerham had removed her belongings and changed her mailing address with Canada Post. He indicates that he typically paid for his own expenses and, on occasion, he paid for meals while dining out with the Applicant. He states that they made their own financial decisions and were not financially responsible for each other in any way. He states that the Applicant, at one point, paid him rent while residing at his condominium from 2007 to sometime in early 2010. 25 Mr. Hanc notes that Ms. Cockerham worked as an investor relations manager at a public trading pharmaceutical company, named Transition Therapeutics. Mr. Hanc describes the Applicant as ambitious and hard- working and that Ms. Cockerham had changed jobs without difficulty when they were together. 26 According to Mr. Hanc, their relationship existed principally between December 2010 to January 2014. During this period of time, specifically in January 2011, the Applicant left Toronto for medical school in the 224 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

Caribbean which lasted until April 2012. During this time Mr. Hanc did visit Ms. Cockerham twice during this 16 months of study each time for a few days and the Applicant returned to Toronto twice during this period to visit with Mr. Hanc. 27 Mr. Hanc testifies that after this Caribbean period of study, the Appli- cant then went on to complete a 17-month period of clinical studies in the United States from October 2012 until December 2013, during which there was again two periods of vacation, in which he visited her on two occasions, and she visited him on two occasions. Mr. Hanc argues that in effect, the relationship was less than three months between January 2011 when the Applicant commence medical school to December 2013 when she completed her clinical studies in the United States. 28 To this, Ms. Cockerham replies that Mr. Hanc is misleading in his characterization and length of the relationship. She characterizes the relationship as a very traditional one. She underlines the fact that she cooked, cleaned and maintained the household doing laundry, ironing, sewing and errands. From her perspective they lived together for nearly seven years in a committed and monogamous relationship in which they were engaged for three years and had planned to get married and have children. 29 Mr. Hanc, in his reply affidavit of October 22, 2015, points out that as the Applicant was at school and out of Canada, she could not have played the role that she claims she had as a homemaker, in particular between January 2011 and December 2013. He also points out that the email exchanges were quite limited, with only two referenced in the Ap- plicant’s evidence, and further that the Applicant does not deny that there was a period of separation. Mr. Hanc further underlines the fact that he did not financially support the Applicant other than a loan with the Royal Bank of Canada (RBC). 30 In Ms. Cockerham responding affidavit, dated October 19, 2015, which is in reply to Mr. Hanc’s motion, she indicates in paragraph 9 that her email records are her evidence that in 2009 and 2010 the relationship did not end and they talked continuously and made purchases together, booked restaurants, traveled and reviewed MLS listings for homes that they were considering purchasing, and as well discussed the type of engagement ring to purchase before the proposal. 31 In paragraph 10 of this October 19, 2015 affidavit, Ms. Cockerham further notes that she paid monthly parking and condo fees using her chequing account in 2008 and 2009 and provided her visa statement, specifi- Cockerham v. Hanc A.W.J. Sullivan J. 225

cally the $5000.00 deposit on the purchase of a Mercedes car that she assisted Mr. Hanc in purchasing. She further notes that the Respondent supported her financially in various ways with housing, meals, clothing and gifts, and provided her cash and with vacations as well as secured the RBC loan that assisted her in pursuing her medical degree. 32 According to Ms. Cockerham it was the Respondent who wanted her to obtain a profession and not simply have a job, and encouraged her and financially supported her with her education. 33 Upon the Applicant’s return in December 2013 the relationship ended shortly thereafter in early January 2014. The Applicant remained at the Toronto condominium until December 2014 and completed an elective course at a Toronto hospital at which time Mr. Hanc moved to a home he purchased in Mississauga.

RBC Loan 34 Regarding this loan, the common evidence between the Applicant and the Respondent is they co-signed for it. The initial amount, in and around December 2010 when the Applicant asked for the Respondent’s assistance in securing this loan, was for $150,000.00. The Respondent indicates that he recognized Ms. Cockerham needed the funds to pay for her education to advance her career. Mr. Hanc indicates that despite “the ten- uousness” of their relationship he recognized the Applicant is intelligent and would ultimately be successful and therefore assisted in co-signing this RBC loan. 35 Mr. Hanc argues that this loan is the Applicant’s sole responsibility and was always from his perspective her responsibility “no matter what happened”. In March 2013 this loan was increased by an additional $50,000.00 for a total of $200,000.00. 36 Ms. Cockerham, in her evidence, does recognize that this loan was taken out in part for her education, but argues that it was also used to assist in the lifestyle and expenses for them both as a couple. 37 Mr. Hanc argues that at no time did he debit this loan for his own personal use. Ms. Cockerham argues that the parties talked about rolling this loan into a mortgage as a way of future payments. Ms. Cockerham indicates that the loan was used over three years for many things, in addition to her education such as mutual gifts, dining and traveling, as well as her housing, clothing and groceries. 226 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

38 In paragraph 22 and 23 of the Applicant’s affidavit of June 18, 2015 she indicates the following: — I fully intend to take accountability for half of our total loan and make payments toward the principal balance once I am licensed, and earning. 39 It is the Applicant’s position that this loan, although partially applied to her medical school education in the Caribbean, remains a mutual responsibility of them both and as she puts it in paragraph 6 of her June 2015 affidavit that: .....The funds went towards tuition, living expenses, and meals with the Respondent, travel to/with the Respondent, and gifts. The Re- spondent assured me often that the loan was nothing to worry about and we could always roll it into our mortgage. Now the Respondent demands to be released from any and all responsibility for the funds already spent. 40 The Applicant indicates that she is not able to take on this responsibility, nor was it her understanding that it would be hers but rather a common one between them both. 41 Mr. Hanc, in his October 12, 2015 affidavit, notes that when the line of credit was maxed out he extended money to the Applicant as a loan of approximately $15,000.00 to pay towards her last installment of her tuition in late 2013, as the RBC line was exhausted. 42 Mr. Hanc attached as Exhibit A to his October 13, 2015 affidavit a copy of the RBC credit line agreement dated December 20, 2010, signed by both parties. Exhibit D to his October 13, 2015, affidavit is the extension to this RBC line of credit signed March 15, 2013. This was signed solely by the Respondent Mr. Hanc as at the time Ms. Cockerham was out Canada.

Applicant’s ability to work and be self-supporting 43 Ms. Cockerham’s highest training and educational level is that of a doctor of medicine, which she completed in April 2014. The Applicant states that during the period of cohabitation she worked for one year and five months or 21.79% of the time. This work was in the investor relations management field. Presently, Ms. Cockerham argues that she does not have the necessary residency requirement to obtain full-time work as a doctor in Canada, and therefore is not licensed to practice medicine in Canada or the United States. Cockerham v. Hanc A.W.J. Sullivan J. 227

44 The Applicant indicates that currently she is not working and is looking for work. She describes her current living situation as much worse than when the parties lived together. She indicates that she is being assisted and supported by living with her parents in Kamloops, British Co- lumbia where there are fewer jobs. She indicates she moved there as she had no other means of support during this time and that she is trying to gain her residency internship. In terms of her ability to become self-supporting she indicates she would need to complete her NDE residency which is a two-year plus program. 45 Ms. Cockerham indicates that she has applied for residency positions in the United States under the program called “Match 2015”. She did not successfully secure a position in 2014. She indicates this program costs $5000.00. She continues to pursue this application matching process during the fall of 2015 both within Canada and again in the United States through similar programs. She states that to apply within British Colum- bia, she must complete the provincially required NAC at a cost of $2200.00 in September 2015, and will need to travel to either Vancouver or Calgary to take this exam. 46 Mr. Hanc takes issue with the fact that the Applicant notes her income in her financial statements to be zero. He states that the Applicant is not providing her income information for 2014 and 2015. He believes she is intentionally underemployed and that income should be imputed to her in accordance with the guidelines and believes that her income in previous employments was between $75,000.00 and $90,000.00 per year. He notes that Ms. Cockerham should not be restricted to employment in Kamloops as she had worked previously in Ontario and had no difficulties or objections in pursuing opportunities elsewhere in the world such as her education in the Caribbean and Atlanta, USA. 47 The Applicant indicates that her last work while living with the Re- spondent ended in January 2009 when the Company Transition Thera- peutics was downsizing. She spent the next two years looking for employment, and according to her testimony, began seeking a profession, not a job, which was, according to her evidence, part of the discussion that she had with the Respondent. She attempted to enter dental school at the University of Toronto unsuccessfully, and eventually decided to pursue medical training with the Respondent’s encouragement. 48 With the breakdown of the parties’ relationship the Applicant indicates she found herself without means to remain in Ontario and therefore 228 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

sought the assistance of her family in British Columbia. She moved there in March 2014. 49 Mr. Hanc indicates that he believes Ms. Cockerham can earn substantial income if she chose to. According to his evidence there are positions that would pay equal to, if not better than, her previous jobs as she now has a medical degree. He states that the Applicant is restricting her employment opportunities to Kamloops and that writing one exam in Sep- tember 2015 does not displace her obligation to obtain remunerative employment. 50 The Applicant did provide in her October 28, 2014 affidavit filed in the Superior Court British Columbia Application the job searches that she made when she originally arrived in Kamloops through a program called Health Match BC. 51 In Ms. Cockerham’s reply affidavit of October 19, 2015 she states that $90,000.00 is not a realistic amount of income to impute in her. She indicates that as a resident physician, if she had a match last year, she would be starting to earn approximately $40,000.00. This is found in paragraph 4 of this affidavit. 52 Further in paragraph 4 of this affidavit, the Applicant indicates that her job search is limited to Kamloops as she has no means of paying rent, nor does she have a vehicle. She does provide as Exhibit D to attached her affidavit the job searches that she submitted in her October 2014 affidavit noted above.

Respondent’s Income 53 Mr. Hanc, in his affidavit of October 13, 2015, states that he is a partner at a large law firm in Toronto. He gained his position in March 2015. His evidence is that his 2015 income will be $310,000.00. He outlines how he was paid earlier as an associate. He projects in paragraph 46 that his 2016 income could be lower and in the vicinity of $253,000.00. Mr. Hanc has filed his financial statement found in volume 2, tab 4.

The Law 54 The legislation that this court considered is found in the Family Law Act (FL A). Section 1 (1) specifies who are spouses. Section 29 extends this eligibility for support to two people who have lived together continuously for three years or who have lived Cockerham v. Hanc A.W.J. Sullivan J. 229

together in a relationship of some permanency and have a child together. 55 Section 30 of the Family Law Act states that: Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7). 56 Subsections 33 (8) and (9) deal with the purpose of spousal support and with the factors that must be considered in making an order. The subsections are as follows: (8) An order for the support of a spouse should, (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matri- monial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9). Determination of amount for support of spouses, parents (9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (a) the dependent’s and Respondent’s current assets and means; (b) the assets and means that the dependent and Respon- dent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the Respondent’s capacity to provide support; (e) the dependent’s and Respondent’s age and physical and mental health; (f) the dependent’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; 230 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

(g) the measures available for the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures; (h) any legal obligation of the Respondent or dependent to provide support for another person; (i) the desirability of the dependent or Respondent remaining at home to care for a child; (j) a contribution by the dependent to the realization of the Respondent’s career potential; (k) REPEALED: 1997, c. 20, s. 3 (3). (l) if the dependent is a spouse, (i) the length of time the dependent and Respon- dent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (v.1) REPEALED: 2005, c. 5, s. 27 (12). (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependent to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 Cockerham v. Hanc A.W.J. Sullivan J. 231

(9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13). 57 In Halliday v. Halliday, [1997] O.J. No. 5241, 37 R.F.L. (4th) 192 (Ont. C.A.) the court directs that part three of the FLA charts a course which a trial judge must follow in determining whether a spouse is entitled to support and, if so, the amount of support in the form of support. The trial judge must: A — determine whether the claimant was a spouse within the meaning of S. 29 B — consider the respective needs and capabilities of the parties under S. 30; C — consider the purpose of the support order that S. 33 (8) and, in determining the amount and duration of support in relation to need, consider all the circumstances of the parties, including the factors stipulated in S 33 (9); and D — choose from the various forms of support contained in S. 34 (1) in awarding support. 58 I will now consider the above factors, which are relevant in the case at bar. 59 Was there cohabitation that meets the definition of legislation for entitlement? In considering the totality of the evidence presented regarding the history of this relationship it is my conclusion that there was a common-law relationship within the definition of legislation as interpreted by the jurisprudence. 60 I have considered the evidence of the relationship of the parties con- textually. They were committed to each other and planned their lives as a common-law couple. Granted that the evidence shows that they were apart for large periods of time as reviewed in the affidavits and set out above, this is only one factor in considering whether a couple is in a common-law relationship. The purpose of the separation might have been a temporary dispute between themselves or because of study or the demands of work. In this case it was due to Ms. Cockerham’s educational program. In this regard the following case is helpful: Parties who cohabitate in a conjugal relationship for at least three years will qualify as spouses for spousal support purposes. The determination of the period of cohabitation requires a contextual analysis and there is no “bright line” test. See Stephen v. Stawecki (2006), 32 R.F.L. (6th) 282, [2006] O.J. No. 2412 (Ont. C.A.) 232 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

61 The court indicated the following: the case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. “Live together in a conjugal relationship” is to be interpreted as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabitating. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship. The fact that one party has not “moved in” with the other did not mean that they were not living together at that time. Although the parties may not have finalized any joint financial arrangements and continue to maintain separate residences, they did live together under the same roof and slept, shopped, cooked, cleaned, socialized and lived together as a couple and were treated as such by their friends, family and neighbors. 62 Referred to Campbell v. Szoke, [2003] O.J. No. 3471, 45 R.F.L. (5th) 261 (Ont. S.C.J.), Affirmed [2005] O.J. No. 154 (Ont. C.A.). The fact that the parties maintain separate residences does not prevent a finding of cohabitation. The court must look at all the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children. Continuous daily cohabitation is not required. 63 In Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) Justice Kurisko sets out the factors and issues that a court is to consider in making a determination of whether two parties meet the definition of “cohabit” under section 29 of the Act: Cohabitation — The preconditions of cohabitation and a relationship of some permanency. Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation? 2. Sexual and Personal Behaviour: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity to each other? (c) What were their feelings toward each other? (d) Did they communicate on a personal level? (e) Did they eat their meals together? (f) What, if anything, did they do to assist each other with problems or during illness? Cockerham v. Hanc A.W.J. Sullivan J. 233

(g) Did they buy gifts for each other on special occasions? 3. Services: What was the conduct and habit of the parties in relation to?: (a) preparation of meals; (b) washing and mending clothes; (c) shopping; (d) household maintenance; and (e) any other domestic services? 4. Social: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? 5. Societal: What was the attitude and conduct of the community to ward each of them and as a couple? 6. Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life? c(food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship? 7. Children: What was the attitude and conduct of the parties concerning children?” 64 In the case at bar the parties each have their own view of the relationship. One stated it was traditional; the other stated it was modern and that they did not have an intertwining of financial affairs. Mr. Hanc indicates that he looked after his financial matters and Ms. Cockerham looked after hers. 65 Ms. Cockerham indicated in her evidence that they were known as a couple in the community and that she attended to some of the domestic needs in the household. Mr. Hanc contests this. It is not entirely neces- 234 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

sary that their relationship be defined as either traditional or modern to accept the fact that they were a common-law couple pursuing and advancing their relationship together. The following is instructive: McEachern v. Fry Estate, [1993] O.J. No. 1731 (Ont. Gen. Div.) When there is a long period of companionship and commitments and an acceptance by all who knew the parties as a couple, continuous cohabitation should be found. Also in Hazlewood v. Kent, [2000] O.J. No. 5263 (Ont. S.C.J.) the court also indicated continuous daily cohabitation is not necessary for a finding under S. 29. 66 The parties in this matter do differ in what they believe they contributed to their common-law relationship. Mr. Hanc was already a trained lawyer and went on to develop his legal career. Ms. Cockerham worked and eventually set on advancing her education with the support of Mr. Hanc. This is quite evident in the fact that he, as a trained lawyer, went so far as to co-sign a loan with Ms. Cockerham through the Royal Bank of Canada. The initial amount was for $150,000.00. Eventually an additional $50,000.00 was added to this. He then, according to his evidence in paragraph 25 of his October 22, 2015 affidavit stated... “I loaned the Applicant a total of $18,000.00; that is a $15,000.00 in late 2013 and an additional $30,000.00 in late 2013 and early 2014. It is true the parties differ in terms of what principally the RBC loan was taken out for and spent on. There is little doubt that the majority of it was spent on Ms. Cockerham’s educational expenses. 67 This court need not resolve who is responsible for the loan or what the principal purpose for taking out the loan was and how it was spent. What I find this loan signifies to the court is a commitment to each other as a couple. As often is the case, both went into this loan agreement, as couples do, without any particular contractual arrangement between themselves and this can be viewed as another example of their commitment to each other at the time. Now that they are separated and have differences they have different views as to the history of this issue. 68 Although they might not have remained together in the same condominium for a continuous period of time, they continue to have a commitment to each other, visiting with each other and corresponding and planning their life together. This is further evident by the engagement between them and the ring that was exchanged which is further evidence of their intention to remain as a couple. 69 This engagement and exchange of the ring occurred in December, 2011 after the difficulties that were described in the relationship, which I Cockerham v. Hanc A.W.J. Sullivan J. 235

find indicates the commitment that each had towards one another over a period of years. 70 The case of DeSouza v. DeSouza, [1999] O.J. No. 1811, 48 R.F.L. (4th) 63 (Ont. Prov. Div.) is further instructive in that the court indicates the following: 71 There are several factors to be considered in determining the permanency of a relationship, including the parties’ intention as overtly express and as reflected in their actions, the duration of the relationship and the circumstances of the individual case. No one factor is conclusive in isolation from the others. 72 Turning to sections 33 (8) and (9) of the Family Law Act that deal with the purpose of spousal support and the factors that must be considered in making a support order the following are the relevant sections that I have looked at and the reasons why: 33 (8) indicates that an order for support of the spouse should, amongst other things; (c) make fair provisions to assist the spouse to become able to contribute to his or her own support; and (d) relief financial hardship, if this is not been done by orders under Parts 1 — which deal with division of properties. 73 In the case at bar, a support order would be made in order to assist Ms. Cockerham in completing the last step of her education as a medical doctor, particularly to write the necessary exams in order to obtain her residency requirements. This goal will assist her in becoming able to contribute to her own support strategically. According to the evidence, at the end of the relationship and after pursuing her education, Ms. Cock- erham’s economic situation is far worse than during the relationship. She indicates that she was left with little resources and was required to obtain assistance from her family in British Columbia. Mr. Hanc does not contest this but indicates that she has the ability to work. I will address this issue separately below.

Determination of amount of support of spouse 74 In considering the determination of the amount and duration for a spousal support award in this matter I have considered the following factors from section 33(9) of the Family Law Act that are relevant: 236 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

• The dependent’s and Respondent’s current assets and means: 75 In the case at bar, the Applicant indicates that she was left with nothing at the end of the relationship and is dependent on her family in Brit- ish Columbia. She testified in her evidence that she has very little furniture if any and no car. The Respondent continues to reside in our home he purchased in Mississauga Ontario. No other evidence was led in terms of his overall assets.

• The assets and means that the dependent and Respondent are likely to have in the future: 76 There was no evidence led on this; however, if both continue with their career paths they will likely have better assets and means in the future.

• The dependent’s capacity to contribute to his or her own support: 77 Under this category Ms. Cockerham is educated. Her limitation presently in terms of her contribution to her own support is the fact that she has not qualified to obtain a residency as a doctor as yet. Her present living circumstances causes her to rely on the support of her family. This appears to be a short-term situation as she is actively pursuing her qualifying exams in order neither to remain dependent on family nor to reside in Kamloops British Columbia.

• The Respondent’s capacity to provide support: 78 The evidence presented by the Respondent Mr. Hanc is that his current’s 2015 income according to his evidence is $310,000.00 He is fully employed and is a partner in an established law firm in Toronto.

• The dependent’s and Respondent’s age and physical and mental health: 79 The Applicant is 32 years old and the Respondent is 37 years old. There was no evidence that either have physical or mental difficulties that would affect their ability to support themselves or contribute to the other. Cockerham v. Hanc A.W.J. Sullivan J. 237

• The measures available for the dependent become able to provide for his or her own support and the length of time in the costs involved to enable the dependence take those measures: 80 Ms. Cockerham’s evidence is that she wishes to write qualifying exams that would allow her to obtain residency in British Columbia or the United States in order to qualify as a doctor. These exams were to be written in the fall of 2015 followed by a period of residence which is about 2 years.

• Any legal obligation of the Respondent or dependent to provide support for another person: 81 There is no evidence that either of the Applicant and the Respondent have an obligation towards any other person.

• The effect of the spouses’ earning capacity of the responsibilities assumed during cohabitation: 82 The evidence in this case clearly indicates that the Applicant had worked during the relationship. As well, the Applicant and the Respon- dent discussed her pursuing her medical degree, which she did and therefore her future earning capacity has been enhanced. Nothing in the relationship seems to have affected her ability to obtain further education or stopped her from being in a better position in the future. Indeed, Mr. Hanc, in his affidavit evidence, states that part of what motivated him signing the RBC loan is that he knows that Ms. Cockerham is intelligent and she would succeed in medical school.

Entitlement to spousal support 83 Entitlement to spousal support can be on the basis of compensatory claims for loss and disadvantage to the recipient and advantages gained by the payor which is not the case at bar. 84 Entitlement can also be based on a non-compensatory basis: need and interdependence. 85 In this particular case, Ms. Cockerham’s situation is one of a noncompensatory claim. During the course of the cohabitation she was dependent by-and-large on Mr. Hanc. She did work but for a large period of time was a student living off a loan that they both signed for. The court accepts her evidence in this regard. 86 I find that she currently is experiencing a drop in living standards in that she is dependent on her family with very little assets and no employ- 238 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

ment. She does have a substantial debt with the RBC. This is a loan that was used in part to fund her education. Her evidence is that she is in a dire economic situation. Her standard of living is different than the Re- spondent. She is dependent on family and has no car that would permit her to look for work far from Kamloops, B.C. Based on the evidence and the factors set out in the Family Law Act, I find the Applicant’s entitlement for spousal support is based on a noncompensatory basis. 87 Section 34 of the Family Law Act outlines the powers of the court to provide different kinds of support orders such as interim or final time- limited or retroactive. 88 Section 34 (e) gives the power of this court to have some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependence benefit. 89 The above section is referring to principally payments to welfare agencies that have provided a benefit such as monthly support payments to the dependent. It is generally understood that the Ontario Court of Jus- tice cannot impose obligations in relation to property or trust matters, except for provisions of necessaries in order to keep a dependent off welfare.

• Imputing income on applicant: 90 Mr. Hanc has argued that the court should impute income towards Ms. Cockerham. The principal argument as outlined in his evidence is that she is educated and has in the past worked. These are some factors that should be considered along with the obligations of each spouse to support themselves as best possible. This issue, however, is to be considered in the context of the facts that I have reviewed and the current situation of Ms. Cockerham. 91 Ms. Cockerham was studying to complete her medical degree and now is set to obtain residency in order to qualify as a doctor. 92 The test for imputing income in spousal support cases, as it applies to a payor’s ability to pay and can be applied as well to a recipient, has been found to be similar criteria as those in child support cases. It is discretionary upon a judge to impute income if factors are present that were unreasonable in the circumstances. The test for imputing income for child support purposes applies equally for spousal support purposes. See Rilli v. Rilli, [2006] O.J. No. 4142 (Ont. S.C.J.); Perino v. Perino, [2007] O.J. No. 4298 (Ont. S.C.J.). Cockerham v. Hanc A.W.J. Sullivan J. 239

93 I have decided not to impute income on the applicant based on a consideration of the following facts and the competing interests in the Fam- ily Law Act: 94 Under Section 30 of the Family Law Act, every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with the concept of the obligations brought on by partnerships such as this common-law relationship or marriage. In the case of Bracklow v. Bracklow [1999 Car- swellBC 532 (S.C.C.)] 1999 Can L I I 715 para. 20 the court discussed the presumption that spouses owe one another a mutual duty of support. This of course is equivalent in common-law relationships as I have found to exist in this case. 95 This court should consider the length of the relationship and the impact that it has on the standard of living of the recipient once the relationship ends. As I have noted above, I have found that there is a common- law relationship here that existed for slightly over 6 years. During this relationship both parties had worked at one point and earned healthy salaries. This led to a certain standard of living. Both agreed that Ms. Cock- erham should pursue her medical education and took out a loan to assist in part with this project. Mr. Hanc, in addition, provided additional money to Ms. Cockerham when the loan was used to its maximum. I find that there has been a drop in Ms. Cockerham’s living standard as outlined above and that she is now poised to enter into a two-year program for her residency which would allow her to become a fully licensed practicing doctor. This would achieve one of the goals in the Family Law Act, which is to become self-sufficient and not be in need of support. 96 When imputing income, a common theme is the motivation and intention of the person to whom income is being imputed. Often, in reviewing the cases, it’s quite evident that a person has taken action to reduce income intentionally, or an unreasonable course of action in stopping employment, or is not looking for employment because of some unrealistic plan. 97 In this case there is none of those traits in Ms. Cockerham’s actions. Indeed, the evidence indicates that she was, up until to the end of the relationship, studying and obtaining programs that would assist her in becoming a doctor. At the end of the relationship her financial circumstances were now worse off and I have found this to currently be the case. She actually took measures to find self-support by relying on family which is a form of supporting herself; however, this should not be the 240 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

case forever. This is another factor in this court’s consideration for not imputing income to her. 98 It is not an unreasonable plan that the applicant has put in place that will see her obtain self-sufficiency. This plan was part of the parties’ actions and plans while they were together. It did not drop from the sky after the separation. In certain circumstances the spousal support analysis will not be given priority to self-sufficiency because it is an objective that simply cannot be obtained given the circumstances of the particular case or is not reasonable given the course of action such as a plan of education that has commenced and that has reached a significant point as it has in the case at bar. See this issue discussed in Fisher v. Fisher (2008), 47 R.F.L. (6th) 235 (Ont. C.A.).

Application of the spousal support guidelines: 99 In Lust v. Lust, 2007 ABCA 202 (Alta. C.A.), the court indicated that the SSAG’s do not take the place of a proper analysis of establishing the appropriate level of spousal support needed in each particular case. The SSAG’s are not a formula to be applied without due consideration of issues of entitlement and the specific factors applicable to any given support case. 100 The court is still required to conduct a proper analysis of budgets and the principles of spousal support set out in the legislation and not automatically revert to the SSAG; Saunders v. Saunders, 2010 CarswellNS 490 (N.S. S.C.). In Phillips-Curwin v. Curwin, 2008 CarswellNS 328 (N.S. S.C.), Justice Dellapinna, noted as follows: Whatever method one might use to determine the appropriate level of spousal support, from a practical point of view the figure chosen should be a reflection of the recipient’s reasonable needs and should not exceed the payor’s means. This is not an exercise in maximizing the spousal support simply because the payor may have the ability to pay it. Rather, the Court must look at all of the factors listed in the Act in light of the stipulated objectives of support and exercise its discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown between the parties (see Bracklow v. Bracklow, 1999 CanLII 715 (S.C.C.), [1999] 1 S.C.R. 420 at paragraph 36). That requires a support order that is fair to both parties. 101 Taking into consideration the above jurisprudence and the facts of this particular case and having reviewed the financial statements of both the Applicant and the Respondent, I find that Ms. Cockerham’s request is Cockerham v. Hanc A.W.J. Sullivan J. 241

reasonable given her needs and circumstances. A support order will alle- viate some of the adverse consequences of the breakdown of this relationship. I therefore order that Mr. Hanc pay Ms. Cockerham $2,500.00 per month in spousal support. This order, however, will not be indefinite given the evidence of this case. The support will continue through to and inclusive of April 1, 2017, which is the estimated time for Ms. Cock- erham to complete her two-year residency from approximately the date of this application.

Retroactivity 102 Kerr v. Baranow, 2011 SCC 10 (S.C.C.) sets out following principles for retroactive spousal support: 1. DBS factors apply as modified for spousal support (circumstances of spouse are relqevant as opposed to circumstances of the child). 2. Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise. 3. The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case where the claimant moves the matter quickly to trial after obtaining disclosure. 4. At Par. 208:Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commen- surate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see S. (D.B.) v. G. (S.R.) [2006 242 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

CarswellAlta 976 (S.C.C.)], at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. 5. S. (D.B.) emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support. 103 A variety of factors must be considered by a court when considering a claim for retroactive support: Bremer v. Bremer [2005 CarswellOnt 601 (Ont. C.A.)] 2005 CanLII 3938, (2005): 1. Establishing past need. 2. Any requirement for the recipient to encroach on capital. 3. The underlying basis for the order. 4. Impact on the payor: is it a redistribution of capital? 5. Blameworthy conduct on behalf of the payor, such as lack of financial disclosure. 6. Notice of intention to seek support and negotiations to that end. 7. Delay in proceeding and any explanation for that delay. 8. The appropriateness of an order predating the application (2005), 13 R.F.L. (6th) 89 (Ont. C.A.), at para. 9; Marinangeli v. Marinangeli 2003 CanLII 27673, 38 R.F.L. (5th) 307 (Ont. C.A.), at paras. 72 to 84. 104 This ISOA application for spousal support is not a surprise. From the evidence there were prior requests and some negotiations between the parties that did not lead to a resolution. An action was started in British Columbia in October 2014. Notice was provided between the parties of Ms. Cockerham’s requests for support before this application was started. Therefore, considering the above, her requests for retroactive support to April 2014 does meet the principles established for asking for retroactivity that would predate the date of this application. I order this support to commence April 1, 2014.

Set off - Support Payments against Loan Payments 105 This court has been asked to set off the RBC loan payments made by Mr. Hanc against any spousal support order made. I did ask the parties to provide me with authority to do so. Mr. Hanc, through his counsel, presented a factum and case law setting out their arguments as to where I might find my authority. 106 I have reviewed the factum and cases. Most, if not all, of these cases are from a Superior Court level or a similar level of courts from across Cockerham v. Hanc A.W.J. Sullivan J. 243

Canada that have the joint powers found under section 1 and section 3 of the Family Law Act or the equivalent legislation in other provinces dealing with the intermingling of property, debt and support and how, if third party payments are ordered, these might be considered under the Income Tax Act. 107 I find that none of these authorities presented assist me at this level of court, the Ontario Court of Justice, as I have no authority to deal with property issues which the issue of this loan touches. 108 To set off support payments against these loan payments would implicitly decide the nature of this loan in terms of percentage obligations between the parties and their respective obligations in relation to the loan. I would, effectively, be venturing into the realm of property and debt and attributing obligations to each of the respective parties in relation to this loan. The authorities provided to me do not assist me nor provide any authority for me to do this. 109 As I noted earlier, section 34(e) of the Family Law Act is used uniquely to forward funds to welfare agencies that have assisted recipi- ents with government funding. In other words, support payments are made to the government as the government has provided monthly welfare benefits that should be repaid n these particular circumstances the nature of this loan and how it was entered into, given the respective knowledge base of each individual in this case, makes this completely different. This section does not give me sweeping powers that would permit me to set off any support payments as requested.

Summary of Order: 1 — Mr. Hanc shall pay support to Ms. Cockerham, in the amount of $2500.00 on the first of each month commencing April 1, 2014. 2 — This support shall be time-limited and be paid on the first of each month, commencing April 1, 2014 through to April 1, 2017. Application granted. 244 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

[Indexed as: Children’s Aid Society of Toronto v. R. (M.)] Children’s Aid Society of Toronto, Applicant and M.R. and A.A., Respondents Ontario Court of Justice Docket: Toronto CFO 13 10579 2015 ONCJ 745 E.B. Murray J. Judgment: November 30, 2015 Family law –––– Children in need of protection — General principles — Ju- risdiction of courts — Jurisdiction to make orders — Miscellaneous –––– Child was apprehended at five years of age following mother being charged with two counts of assault against child — With mother’s consent, child was placed in her grandparents’ care pursuant to supervision by children’s aid society, and child had lived with them since November 2013 — Grandparents lived in British Columbia and mother lived in Toronto — Mother was convicted on assault charges and child was found to be in need of protection — Society brought summary judgment motion on status review application asking that child be placed in care of her grandparents — Mother opposed motion — Jurisdictional issue arose as to whether Ontario court had authority to make order under s. 57.1 of Child and Family Services Act (CFSA) with respect to child who had lived outside of Ontario for past two years — Court had jurisdiction to make order — Authority for court to make order for custody under CFSA was found in s. 57.1(1) of Act, which made no reference to Children’s Law Reform Act — There was no reason to think that “deeming” subsection at s. 57.1(2) of CFSA diminished or restricted that authority — Subsection 57.1(1) of CFSA is followed by s. 57.1(2) which deems s. 57.1(1) order to be made under Children’s Law Reform Act — Prior to enactment of s. 57.1 of CFSA, caregivers were required to commence separate proceedings claiming custody, and when custody order was obtained, society would typically ask court’s leave to withdraw their application — Child’s caregivers were frequently unable to institute proceedings in timely manner with result that society was needlessly involved with family under supervision oorder — Creation of CFSA custody order triggered need for mechanism to control future dealings between parties that would not require participation of society — There was no basis for arguing that use of deeming provision in s. 57.1(2) of CFSA deprived court of jurisdiction to make initial custody order under s. 57.1(1) of CFSA — Court has jurisdiction to make order under s. 57.1(1) of CFSA on same basis that it did any other order for disposition after there had been protection finding — There was no requirement that child be habitually resident in Ontario at time that order was made, and it was Children’s Aid Society of Toronto v. R. (M.) 245 sufficient that child was physically present in Ontario at time of commencement of original protection application — Interpretation argued for by mother was contrary to paramount purpose of CFSA to promote best interests, protection, and wellbeing of children — Court had jurisdiction to make order required by society under s. 57.1(1) of CFSA. Cases considered by E.B. Murray J.: Children’s Aid Society of London & Middlesex v. C. (F.E.) (2001), 2001 Cars- wellOnt 4165, 22 R.F.L. (5th) 247, [2001] O.T.C. 833, [2001] O.J. No. 4613 (Ont. S.C.J.) — considered Children’s Aid Society of Windsor-Essex v. C. (C.) (2000), 2000 CarswellOnt 5019, 11 Imm. L.R. (3d) 68, [2000] O.J. No. 4991 (Ont. S.C.J.) — considered Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 37(2) — considered s. 57.1 [en. 2006, c. 5, s. 14] — considered s. 57.1(1) [en. 2006, c. 5, s. 14] — considered s. 57.1(2) [en. 2006, c. 5, s. 14] — considered s. 57.1(6) [en. 2006, c. 5, s. 14] — considered s. 61(4) — considered Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 22 — considered s. 22(1) — considered s. 22(1)(b) — considered s. 22(2) — considered s. 28 — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 16(5) — referred to

MOTION by children’s aid society for summary judgment on status review application asking that child be placed in care of her grandparents under s. 57.1 of Child and Family Services Act.

Ms Donna Gray, for Applicant, Society Mr. Anthony Macri, for Respondent, Mother Mr. Marek Balinski, for Respondent, Father 246 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

E.B. Murray J.:

1 The Children’s Aid Society of Toronto brings a summary judgment motion on a status review application asking that the child C., born Au- gust 20, 2008 be placed in the care of her grandparents, G. and M. R., pursuant to s. 57.1 of the Child and Family Services Act (CFSA). Mother opposes the motion. 2 C. was apprehended from Mother’s care in July 2013 when Mother was charged with two counts of assault against the child. With Mother’s consent, C. was temporarily placed in her grandparents’ care in Novem- ber 2013 pursuant to Society supervision. The grandparents live in Brit- ish Columbia. Mother lives in Toronto. 3 Mother was subsequently convicted on the assault charges, and on November 4, 2014 C. was found to be a child in need of protection pursuant to S. 37(2) (a) of the Act. 4 At the outset of the motion, Mother’s lawyer questioned whether a court has the jurisdiction to make the order sought. I directed that this issue should be determined before the motion could proceed. 5 I noted pleadings closed against Father as he had not filed an Answer, although duly served. Father’s counsel did not participate in argument on the motion.

Jurisdictional issue 6 Mother’s lawyer questions the court’s authority to make an order under s. 57.1 of the CFSA with respect to a child who has lived outside Ontario for the past two years. His argument is as follows. 1. The court’s jurisdiction to make an order under s. 57.1 of the CFSA is restricted by the jurisdictional limits under the Children’s Law Reform Act (CLRA) because the CFSA provides that an order under s. 57.1 of the Act is “deemed to be made under section 28” of the CLRA. The relevant sections of both statues are set out below. S. 57.1 CFSA1 57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an

1 I do not set out 57.1(6), as it is not relevant to the issue before me. Children’s Aid Society of Toronto v. R. (M.) E.B. Murray J. 247

order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. (2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court, (a) may make any order under subsection (1) that the court may make under section 28 of that Act; and (b) may give any directions that it may give under section 34 of that Act. S. 22 of the CLRA 22. — (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (a) the child is habitually resident in Ontario at the commencement of the application for the order; (b) although the child is not habitually resident in On- tario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. (2) A child is habitually resident in the place where he or she resided, (a) with both parents; 248 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred. 2. Mother’s counsel asserts that since a s. 57.1 order is “deemed” to be a CLRA order, then the order cannot be made unless there is jurisdiction pursuant to the test in s. 22 of the CLRA. 3. With respect to the s. 22(1) (a) test, counsel argues that C. was not “habitually resident “in Ontario at the date of the “the commencement of the application”, which he says is the date of the status review application, September 24, 2015. At that time, C. had been living in B.C. with her grandparents for almost two years. 4. Counsel submits further that the court has no basis to take jurisdiction pursuant to s. 22(1) (b) of the CLRA, for the following reasons. • C. was not physically present in Ontario at the date of the status review application. • The evidence most important on the current status review — evidence from experts and service providers and her grandparents with respect to C.’s mental and emotional health — is in B.C. • There was a custody application begun by the grandparents in provincial court in B.C. (That application could not proceed because Mother would not give her consent2.) • The balance of convenience favours the case proceeding in B.C. 7 The Society replies that an order under s. 57.1 of the CFSA is not an order under the CLRA, and a deeming provision does not make it so. Society counsel submits that there is no doubt that the court has the power to place a child outside Ontario if that placement is deemed to be in the child’s best interests, and that courts routinely make such orders; it

2 Apparently a case could be brought without Mother’s consent in B.C. Supreme Court, but the grandparents have not taken that step. Children’s Aid Society of Toronto v. R. (M.) E.B. Murray J. 249

would be ridiculous to provide that the court lost jurisdiction as soon as such an order was made. Counsel says that Mother’s interpretation of s. 57.1 would unduly restrict the placement options open to children, surely a result contrary to the purposes of the Act. 8 Society counsel argues further that, even if Mother’s counsel is correct in his submission, “the commencement of the application” referred to in s. 22 of the CLRA means the commencement of the initial protection application. C. was habitually resident in Ontario at that time.

Analysis 9 I am not persuaded by Mother’s argument with respect to jurisdiction. 10 The authority for a court to make an order for custody under the CFSA is found in s. 57.1(1) of the Act, which make no reference to the CLRA. I see no reason to think that the deeming” subsection which follows at s. 57.1(2) diminishes or restricts that authority. I say this for the following reasons. 1. Subsection 57.1(1) is followed by s. 57.1(2), which “deems” a 57.1(1) order to be made under the CLRA. What does “deem” mean? Canadian Legal Words and Phrases3 in explaining the term, quotes the following observation in a judgement: “Deemed” is commonly used for the purpose of creating ...a statutory fiction...that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced....This is often a convenient device for re- ducing the verbiage of an enactment.” What is the purpose of “deeming” a s. 57.1 (1) order to be an order under the CLRA? The answer to that question lies in the purpose for the enactment of s. 57.1 The section was enacted in 2006 to provide a less intrusive disposition option for children who had been dealt with under the CFSA, but who now were placed with caregivers whom the court did not believe required the supervision of a society to insure the child’s safety and wellbeing. Prior to the enactment of s. 57.1, those caregivers were required to commence separate proceedings claiming custody.

3 LexisNexis, quoting Cooper & Dysart v. Sargon, (1991) 4 ACSR 649 250 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

When a custody order was obtained, a Society would typically ask the court’s leave to withdraw their application. Frequently, however, a child’s caregivers were unable to institute proceedings in a timely matter (or sometimes, at all), with the result that a Society was needlessly involved with a family under supervision order. The creation of this new animal, the CFSA custody order, triggered a need for a mechanism to control future dealings between the parties that would not require the participation of the Society. Drafters could have crafted further sections to 57.1, dealing with what provisions a custody order could include, with accompany- ing access orders, and with future variation applications. Instead they drafted, s. 57.1(2), allowing the deeming provision to do the work. There is no basis to argue that the use of a deeming provision in s. 57.1(2) somehow deprives the court of jurisdiction to make the initial custody order under s. 57.1 (1). 2. A court has the jurisdiction to make an order under s. 57.1(1) on the same basis that it does any other order for disposition after there has been a protection finding. There is no requirement set out that a child be “habitually” resident in Ontario at the time the order is made. It is sufficient that a child was physically present in the province at the commencement of the original protection ap- plication4. Once an application is commenced, the Society is permitted to place a child outside the province5. The court’s jurisdiction to make orders respecting the child continues, although there are potential difficulties with enforcement. In the case of 57.1 orders made granting custody to parties living in another Canadian province, the custodial parent may register the 57.1 order in that province if the applicable legislation provides for enforcement of extra-provincial orders.

4 As Justice Daudlin noted in Children’s Aid Society of Windsor-Essex v. C. (C.), [2000] O.J. No. 4991 (Ont. S.C.J.), “the pivotal element (of the CFSA) is child safety, not child safety for ordinary resident children in the territory”. 5 See Children’s Aid Society of London & Middlesex v. C. (F.E.), [2001] O.J. No. 4613 (Ont. S.C.J.), re: supervision orders placing child outside Ontario. S. 61 (4) of the Act recognizes that Society or Crown wards may be laced outside the province with the approval of the Director. Children’s Aid Society of Toronto v. R. (M.) E.B. Murray J. 251

If the Legislature had intended that a 57.1 order could only be made if a child was habitually resident in the province6 at the time of the order, I would have expected that this provision — a departure from the law which otherwise applies to CFSA orders — would be explicitly stated. It was not. 3. The interpretation argued for by Mother is contrary to the paramount purpose of the CFSA, to promote the best interests, protection and wellbeing of children.. The Act directs a court to consider placement with family or community where possible, and to consider the least restrictive alternative for a child. The Act permits placement of children out of province on a supervision order and, with the Director’s approval, as Society or Crown wards. If C. is to continue to be placed with her grandparents, the least restrictive alternative is clearly a simple custody order, an order that does not require continued state oversight. Under Mother’s interpretation, that alternative is not open to the court — the only alternative is a supervision order. 11 I find that the court does have jurisdiction to make the order requested by the Society pursuant to s. 57.1(1) of the Act. 12 Counsel shall contact the trial coordinator to arrange a hearing for the summary judgment motion. With respect to that motion, I direct as follows: • Society counsel shall prepare, serve and file a factum, setting out with specificity the facts relied upon and the location of those facts in the material filed, (which currently totals 567 pages). Mother’s counsel has filed a factum, but the factum makes no reference to facts relied upon in his argument. He shall amend his factum to set out the facts relied upon and the location of those facts in the material filed. • The Society’s factum shall also address the issue of how proposed opinion evidence should be treated on a summary judgment motion. How can such opinions be relied upon to demonstrate that there is no issue of material fact requiring a trial? • Society counsel shall underline all hearsay passages in the affidavit material filed. With respect to any objections to the proposed hearsay evidence, counsel for both parties shall cooperate to prepare and file a chart in the form attached indicating the purpose for which the hearsay is offered, the legal basis for admission (other than by reference to Rule 16(5)), and the basis for the ob- 252 REPORTS OF FAMILY LAW 71 R.F.L. (7th)

jection. If counsel does not have the chart in electronic form they should contact the judicial secretary. • Both parties shall file duplicates of all material for the motion. Order accordingly.